De Koslowski v. Yesler

Opinion by

Wing-aed, Associate Justice.

This was an action brought by the appellee against the appellant, upon a promissory note given by appellant to John Leary, Tor the sum of $300, dated March 21st, 1874, due on or before Sept. 1st, 1874, with intei-est, payable monthly in advance, at the rate of two per cent, per month.

This note was assigned after maturity to one Coleman, and by Coleman to Koslowski.

The appellee alleges that Yesler paid the interest on the note, -which was then due on September 21st, 1875, which allegation ■inter alia the appellee denied.

Appellant also pleads the Statute of Limitations, which was denied by the reply.

The action was commenced July 5th, 1881. The cause was tried by the Court, which found all the issues presented in favor of the appellees ; and thereupon a decree was entered in favor of the appellees, from which the appellant takes this appeal.

The 5th finding of the Court below is as follows: “ That on the 20th day of September, 1875, said defendant Henry L. Yesler paid to said James L. Coleman, as interest on said note, the sum of $66 ; and said Coleman upon the same day endorsed said payment on said note.”

This finding, which we think is sustained by the evidence, takes the claim of the appellee based upon the note out of the Statute of Limitations. (Code of Wash., Secs. 44, 45; 3d Parsons on Contracts, 7th ed. 73, 77.)

The 7th finding, which we also agree is sustained by the evidence, is as follows : “ That no payments have been made upon said note since said 20th day of September, 1875, and the whole of the principal of said note and the interest thereon, since said 20th day of September, 1875, remain unpaid.”

The 13th finding of the District Court is as follows: “ That there is no counter claim or set-off against said promissory note.”' This last finding was doubtless based upon the evidence disclosed by the account itself, pleaded by the appellant as a counter claim, that said account was barred by the Statute of Limitations.

It follows from these findings, supported by the evidence as we deem them to be, that the Court below correctly rendered the decree of which the appellant complains.

The judgment of the District Court is affirmed.

We concur: John P. Hoyt, Associate Justice.

George Turner, Associate Justice.