
    [No. 5896.
    Decided February 23, 1906.]
    
    Joseph O’Neil, Respondent, v. Kate Lindsey et al., Defendants, Mary Hurley, as Executrix etc., Appellant.
      
    
    New Tut at. — Continuance—Subpbise. In an action upon a promissory note brought against the wife, as executrix of the estate of her husband, one of the joint makers of the note, in which the plaintiff had alleged payments tolling the statute of limitations, without specifying by whom the payments had been made, the defendant is entitled to a continuance of the case or a new trial, where the court had denied her motion to make the complaint more definite and certain by stating by whom, to whom, and when the payments had been made, and where ic appears that she was surprised at the trial by the evidence of a witness who claimed to have acted' as agent of the holder of the note, and. who testified to a payment of $2 made by the deceased in September, 1897, at the city of S, which was the payment relied upon by the plaintiff to toll the statute; and where the defendant testified at the trial that the deceased had been a helpless invalid since 1896, unable to attend to any business or make any payments- on the note, and that he had not been at the city of S but once since 1896, when she accompanied him, and that she could not state at the time what year that trip was made, but would be able to do so if time was given to communicate with parties at S; and after the trial affidavits were produced to the effect that the aforesaid trip to S had been made in April 1900.
    Appeal from a judgment of the superior court for Mason oo-unty, Linn, J., entered April 21, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon a promissory note.
    Reversed.
    
      J. W. Robinson, for appellant.
    
      Phil Shillman and O. C. Israel, for respondent.
    
      
      Reported in 84 Pac. 603.
    
   Hadley, J.

This is an action to procure a judgment upon a promissory note, and to foreclose a mortgage given to secure the same. It is alleged, that the note was for $282.50, dated February 1, 1896, payable three months after date, and executed by Kate Hurley, now Kate Lindsey, and also by Mary Hurley and Dennis Hurley; that the mortgage was executed o: the same date by said Kate Hurley; that both note and mortgage were made to Llobart G. Hagan, as payee and mortgagee, respectively; and that plaintiff, by assignment, is the holder thereof. It is alleged that certain payments were made upon the note. Dennis Hurley having died, testate, before the commencement of this suit, the said Mary Hurley was made defendant in her own right, and also as the executrix of the will of the deceased Dennis Hurley. Kate Hurley was made defendant under her present name of Kate Lindsey, together with her husband Price Lindsey. It is alleged that, prior to this suit, the claim based upon the note was duly presented to the said executrix, and by her rejected.

The defendants moved the court to require the complaint to be made more definite, and certain, in the particular that plaintiff should state by whom, to whom, and upon what dates the payments alleged to have been made were made. The motion was denied. The said executrix answered separately, denying the material allegations of the complaint, and pleading the statute of limitations. The defendants other than the executrix answered similarly by separate pleading. The cause was tried by the court without a jury. The defendants other than the executrix were dismissed from the action, foreclosure was denied, and judgment was rendered against the executrix for $787.69 and costs, from which she has appealed.

It is assigned that the court erred’ in not sustaining appellant’s motion to make the complaint more definite and certain with respect to the allegations as to payments, and also in refusing to re-open the case for further testimony, or for a new trial. The complaint showed upon its face that the note was barred by the statute of limitations, in the absence of payments thereon. There were three makers of the note, and while the complaint alleges that p-ayments were made, yet it does not allege by whom or to whom they were made. It is alleged that a payment of $2 was made in September, 1897, the day not given. It is upon this alleged payment that respondent relies to prevent the bar of the statute-. To make such payment binding upon the deceased Hurley in the way of tolling the statute, it was necessary that it should have been made by him* or by his authority, and with his knowledge and consent. He being dead, it was but reasonable that respondent should have advised the executrix if he claimed that the payment was made by the deceased. The court having declined to require this, appellant was met at the trial by the testimony of a witness who claimed that* acting as agent of the- holder of the note, she received from the deceased Hurley, at Seattle, in September, 1897, $2 as a p-aymnt upon the note. The witness admitted that the indorsement upon the note of the credit for the alleged payment was made in hex own handwriting, and that it was not placed there until a short time before this suit was brought, about five and one-half years after she claims the payment was made.

The executrix, who is the widow of the deceased Hurley, was surprised by this testimony. She testified that, soon after the note was given, the deceased became so afflicted physically and mentally that he could not transact any business, and that from some time in 1896 she transacted all the business for the two, and did so continually to the time of his death in July, 1902; that during those years her husband never left home unless she was with him; that he never had to exceed twenty-five 'or fifty cents in money with him at any one time during those years; that he was never in Setattle but once after 1896, and that she was with him during that time; that he could not have made the alleged payment in Seattle without her knowledge, and that she had no¡ such knowledge. She could not then remember certainly the year that they made the trip to Seattle, but stated that if she could he allowed to communicate with certain parties in Seattle, she could show by them the date when her husband was there, and the only time he was there after 1896.

After the trial, she produced affidavits to the effect that the aforesaid trip to Seattle was not made in the year 1897, but was made in April, 1900. She asked that the case might be reopened, or that she might have a new trial, in order that she might introduce testimony upon the above subject, shown by the affidavits to be available. This was denied. We think, in view of the fact that the court had denied the motion to make the complaint more definite upon the subject of payments, that it was error to deny appellant the opportunity she asked. The cause was tried by the court, and could easily have been re-opened if a full new trial was thought unnecessary. If the complaint had been made more definite, appellant might have been apprised before the trial of what she was required to meet. But, as it was, she clearly did not know until tbe witness wbo claims to bave received tbe payment bad testified. If tbe deceased was not in Seattle in tbe year 1897, then tbe payment could not bave been made as testified by tbe witness. Under all tbe circumstances, we tbink appellant is entitled to introduce tbe proposed testimony.

Tbe judgment is reversed, and tbe cause remanded with instructions to grant a new trial.

Mount, C. J., Fullerton, Crow, and Dunbar, JJ., concur.  