
    [No. 5439.
    Decided May 2, 1905.]
    Old Dominion Mining & Concentrating Company, Appellant, v. Floyd L. Daggett, Respondent.
      
    
    Contracts—Construction—Provision for Payment of Note. A stipulation in a promissory note to the effect that the payee is willing to accept monthly payments of $10 each, together with 7% per cent of all premiums on policies written for the payee or for certain named parties, the same to be paid to’ the payee and applied on the note, does not impose upon the payee any obligation to write insurance on its property or on the property of the persons named, especially in the absence of the monthly payments of $10; and it is error to find that the note was discharged on its failure to take such insurance, especially where it was not shown that the monthly payments had been made, nor that the payed could have purchased insurance from the makers in sufficient amount to cause the agreed percentage to fully pay the note.
    Limitation of Actions—Tolling Statute—Payment on Note by Joint Maker. The statute of limitations does not run in favor of a joint maker of a note who personally makes a payment thereon from his own funds, within the period, without the knowledge or consent of his co-makers.
    Appeal from a judgment of tbe superior court for Spokane county, Belt, J., entered June 1, 1904, upon findings in favor of a defendant, after a trial on tbe merits before tbe court without a jury, dismissing an action upon a promissory note as to one of tbe joint makers.
    Reversed.
    
      Cullen & Dudley, for appellant.
    
      Alex M. Winston, for respondent.
    
      
      Reported in 80 Pac. 839.
    
   Crow, J.

Tbis action was commenced by tbe Old Dominion Mining and Concentrating Company, a corporation, appellant, against P. A. Daggett & Company, a corporation, P. A. Daggett, Ella Daggett, Floyd L. Daggett, and Christina Daggett, to recover a judgment upon a certain promissory note, in words and figures as follows:

“$375.00 Spokane, Washington, April 1st, 1896.

“On demand after date-, without grace, we promise to pay to the order of the ‘Old Dominion Mining & Concentrating Company’ Three Hundred and Seventy-five-Dollars, in gold coin of the United States of America of the present standard value, with interest thereon in like gold coin at the rate of one per cent per month from date until paid, for value received. Interest to be paid monthly, and if not so paid, the whole sum of principal and interest to become immediately due and collectible, at the option of the holder of this note. And in case suit or action is- in-, stituted to collect this note or any portion thereof, we promise and agree to pay, in addition to the costs and disbursements provided by statute, a reasonable- amount of dollars, in like gold coin for attorney’s fees in said suit or action.

“(1) The said amount of dollars is $375, is for premiums on Fire Insurance Policies amounting to $12,500, issued by the Imperial Insurance Company of London for $7,500, the number of the Policy being 3,301,500, dated December 4th, 1895, and by the ‘Phoenix Assurance Company’ for $5,000, the number of the Policy being 4,097,-700, dated December 21, 1895, to the.‘Old Dominion Mining & Concentrating Company’ of Spokane, Washington, issued upon its Concentrator etc., situated at the ‘Old Dominion’ mine, Stevens county, Washington, the said premiums having been paid in full by the said ‘Old Dominion Mining & Concentrating Co.’ to P. A. Daggett & Co-., as Agents for the authorized Agents of said Insurance Companies, but which said premiums were not delivered by the said P. A. Daggett & Co. to the said authorized Agents of said Insurance Companies as claimed by them, and in lieu of which, said Insurance Companies through their so-called authorized agents, have- cancelled said policies, although it is claimed by the ‘Old Dominion Mining & Concentrating Co-.’ to be done without legal right or authority.

“(2) In order to- give the said P. A. Daggett & Co. and the said authorized agents and Insurance Companies an opportunity to reimburse the said ‘Old Dominion Mining & Concentrating Co.’ the named $375, and accruing interest, the said ‘Old Dominion Mining & Concentrating Co.’ is willing to accept payments monthly of $10, payable upon the first day of each month, together with 7% per cent upon the premiums upon all policies issued to the ‘Old Dominion Mining & Concentrating Co.’ to Gr. B. Dennis upon his private property, to Cyrus Bradley upon his private property, and to ‘Dennis & Bradley’ upon their joint property, the said 7% per cent to be deducted at the time of payment of premiums by the assured, or at such times as the said ‘Old Dominion Mining & Concentrating Co.’ or the said named individuals and firm shall demand.

“(3) And the said P. A. Daggett & Co. further agree that said monthly payments and said 7% percentages shall be paid to the said ‘Old Dominion Mining & Concentrating Co.’ upon all insurance policies, irrespective by what agent or agents or insurance companies said insurance may be obtained through, or in.

“(4) And it is further agreed that William M. Byers of Spokane, Wash., and by him, that he will act for the said P. A. Daggett & Co. as agent, collect from them and pay to the said ‘Old Dominion Mining & Concentrating Co.’ said stipulated sums of money at such times as same becomes due.

“(5) Nothing in this note, and contract which is made a part of this note, shall operate as a release of any legal rights that the said ‘Old Dominion Mining & Concentrating Co.’ may have in the premises, either as against the said P. A. Daggett & Co., the Insurance. Agents whom they represented, or the insurance companies who cancelled the above named policies in said transaction, until all and every dollar of this note is paid.

“(6) The said ‘Old Dominion Mining & Concentra* ting Co.’ reserves the right at any time to proceed legally to collect this note, or any balance due, and to enforce payment and collect from any resources in the possession of said P. A. Daggett & Co., the authorized agents of said named Insurance companies, or said above named insurance companies themselves.

“I accept tbe above: P. A. Daggett & C'o.

“William M. Byers. P. A. Daggett.

“Ella Daggett.

“Eloyd L. Daggett.

“Christeena Daggett.

On tbe trial, and upon motion for a nonsuit, tbe action was dismissed as to P. A. Daggett, Ella Daggett, and Christina Daggett, under a plea that, as to them, tbe action was barred by tbe statute of limitations. Of this order, no complaint is made- by appellant. Afterwards final judgment was entered in favor of appellant against tbe corporation defendant, P. A. Daggett & Company, for tbe amount due upon tbe note, attorney’s fees, and costs; but, at tbe same time, tbe action was dismissed as to Floyd L. Daggett, and be was awarded costs against appellant. From tbe order of dismissal as to Eloyd L. Daggett, this appeal has been taken.

Respondent has moved to dismiss tbe appeal, and also to strike appellant’s brief. There is no- merit in tbe motions, and they are denied.

Respondent, Eloyd L. Daggett, filed a separate answer, in which be admitted tbe execution of tbe note, pleaded tbe statute of limitations, and, also, by way of further afiirmative defense, in substance, alleged: That, at the time of tbe making of said promissory note, appellant agreed with respondent that, until said note should be paid, appellant would carry insurance upon its property to tbe extent of $25,000; that G. B. Dennis, president of appellant, and one Cyrus Bradley, bis partner, and tbe firm of Dennis & Bradley would also carry insurance on their property in an amount ordinarily carried by prudent and careful business men; that said insurance should be carried through one William M. Byers; that seven and one-balf per cent, of all premiums paid on all of said insurance should be paid by said Byers to appellant, and applied 'on account of the indebtedness evidenced by said note; that, if said insurance should be procured by appellant, or any of said parties, elsewhere, seven and one-half per cent of the premium should be applied on said note; that appellant in part kept said agreement, and payments, amounting in all to $4.27 and $65.08, were thus made on said note; but that, after March 1, 1897, appellant wholly refused and failed to keep said agreement; that, if appellant had kept the same, said percentage of such premiums would have fully paid said note; and that, by reason thereof, said note had been cancelled and fully satisfied. Appellant, in its reply, denied said affirmative defense, and the issue thus raised is the only one necessary to’ be considered on this appeal.

On the trial respondent, Floyd L. Daggett, offered evidence in support of the issue tendered by said affirmative answer. To the introduction of this evidence, appellant objected, for the reason that its purport was to vary, change, and add to the terms and provisions of the note or written agreement sued upon, which agreement was compete in itself, and that, under the settled rules of law, no evidence could be permitted to vary, add to, or alter its terms and conditions. Without ruling upon this objection, the court admitted the evidence, the trial being had without a jury. We do not think it necessary to now determine whether the objection of the appellant was well taken, as all the evidence offered was admitted and is before us, and, upon a careful examination of the same, we are unable to find that it sustains the defense pleaded in respondent’s affirmative answer.

Upon the trial respondent requested the court to find that the contract pleaded by him had been made, while ap-

pellant requested a contrary finding. Neither request was granted, and no finding whatever appears to have been made on that issue. We feel warranted in assuming that the trial court did not consider the evidence as sufficient to sustain the allegations of the affirmative answer, and we regard it in the same light. The findings of fact and conclusions of law actually made by the court, which are pertinent here* are, in substance, as follows:

“Findings of Fact— . . . (2) That the defendants, on April 1, 1896, executed and delivered to plaintiff the note above set forth. . . . (4) That said Byers, on April 1, 1896, accepted the obligation imposed on him by said writing. (5) That the following payments have been made upon the said obligation, to wit, on December 8th, 1896, $4.27; on March 1st, 1897, $65.08; on April 30, May 30, June 2nd, and Sept. 24th, 1897, $10 each; on April 28th, 1898, $10. (6) That the last payment made on April 28, 1898, was made by defendant P. A. Daggett & Co., a corporation, by Floyd L. Daggett, one of its officers, and was made without the knowledge, consent, or ratification of the defendants P. A. Daggett, Ella Daggett, or Christina Daggett, or any of them. . . . (9) That ever since the 1st day of March, A. D. 1897, plaintiff has wholly failed and refused to permit William M. Byers* or P. A. Daggett & Co., to write insurance upon the property of plaintiff or the property of G. B. Dennis or the property of Dennis and Bradley or the property of Cyrus Bradley. (10) That ever since the execution of the said obligation, defendant P. A. Daggett & Co. and William M. Byers have been at all times ready, willing and able to write the insurance of the plaintiff, of G. B. Dennis, of Dennis & Bradley, and of Cyrus Bradley, and to' apply 7% per cent of the premium thereon toward the payment of the obligation sued upon-therein.

“Conclusions of Law— . . . (3) That under the terms of the said written obligation, plaintiff is entitled to take nothing against the defendant Floyd L. Daggett, and said defendant is entitled to* the judgment against the plaintiff for his costs herein. (4) That plaintiff is entitled to> the judgment against .defendant P. A. Daggett & Co., a corporation, for the amount of the said obligation, together with the interest thereon at the rate of 12 per cent per annum in the manner specified in said note, less the payments made thereon but together with the sum of $60 as attorney’s fees herein.”

The judgment entered against P. A. Daggett & Company was for $515.65, remaining due on said note, attorney’s fees, and costs.

It is now contended by appellant that said third conclusion of law does not follow from the findings of fact made by the court; that said 9th and 10th findings themselves are not warranted by the evidence, and that judgment having been entered against P. A. Daggett & Company, it should also have been entered against the respondent, Ployd L. Daggett. On the other hand, respondent, Ployd L. Daggett, contends that the judgment dismissing the action as to him is sustained by said 9th and 10th findings, and that the judgment against the corporation, P. A. Daggett & Company alone, is warranted by the conditions contained in the 5th and 6th subdivisions of the note.

The right of appellant to- recover herein against, respondent, Ployd L. Daggett, depends upon the construction to be placed upon the conditions contained in the note. We do not understand, by the terms of said instrument, that appellant was under any imperative obligation to write insurance upon its property, or upon the property of G. B. Dennis, Cyrus Bradley,.or Dennis & Bradley, with said P. A. Daggett & Company or said William M. Byers. Said instrument only stipulated that appellant was willing to accept monthly payments of $10 each, “together with” seven and one-half per cent of all premiums due on all policies issued to> appellant and the other parties mentioned ; reference evidently being had to any policies that might he SO' issued at the instance or through the instrumentality of said P. A. Daggett & Company, or the said authorized agents of said insurance companies, or by said William M. Byers; the evident intention being to secure to the makers of said note the privilege of applying to the payment thereof the agreed percentage of premiums on such insurance as might he thus written. Monthly payments of $10 each were required to be made with said percentage of premiums. No> pretense is made that such monthly payments were all kept up until the default mentioned in the 9th finding of fact occurred. There is no stipulation in the agreement compelling appellant to place said policies, with any particular person or company, nor any stipulation that, upon appellant’s failure to so place said policies, said note should be discharged as to any of the makers thereof. In any event, if appellant was bound in any way in the matter of insurance, it was only on condition of prompt payment of said monthly installments of $10.

But even were we to place a different construction upon this contract, the findings of fact actually made by the trial court utterly fail to- show that appellant was in a position to purchase, or could have purchased, through P. A. Daggett & Company, or from said Byers, insurance sufficient in amount to cause seven and one-half per cent of premiums thereon to fully pay said note.

Respondent, Ployd L. Daggett, was not dismissed with other defendants on his plea of the statute of limitations, for the reason that he personally made the last payment on said note, on behalf of P. A. Daggett & Company, said payment being made by him from his own funds, without the knowledge or consent of the remaining defendants; so that, while said note was harred as to them, it was not barred as to .him. The dismissal of the action as to him must have been based entirely upon the 9th and 10th findings of fact above set forth, which are not sufficient to warrant such order.

It is contended by appellant that it was inconsistent to enter judgment against P. A. Daggett & Company, a corporation, and discharge Floyd L. Daggett. We fail to comprehend any correct principle on which the trial court discharged Floyd L. Daggett, and at the same time entered judgment against P. A. Daggett & Company. There is absolutely no showing of full payment of the note, or of the prompt payment of said $10 installments. Upon the pleadings and evidence', appellant was entitled to' recover, not only against P. A. Daggett & Company, but, also, against the respondent, Floyd L. Daggett. The affirmative defenses pleaded by Floyd L. Daggett were not sustained. All evidence offered by respondent having been admitted, and being now before us, upon said evidence, and the issues of fact presented by the pleadings, we think the trial court erred in dismissing this action as against the respondent, Floyd L. Daggett

The judgment of the superior court is reversed, and the cause remanded with instructions to enter judgment against the respondent, Floyd L. Daggett, for the same amount for which judgment has been entered against P. A. Daggett & Company.

Mount, C. J., Rudkin, Dunbar, and Root, JJ., concur.

Fullerton and Hadley, JJ., took no part  