Carlson v. Dixon
Carlson v. Dixon
Opinion of the Court
Tbe plaintiff claims that in July, 1903, be loaned -tbe defendant $1,000, taking as collateral security bonds of tbe Milwaukee Granite Company of tbe par value of $1,000. Stock in tbe same company to a like amount was delivered witb tbe-bonds, and it does not very clearly appear from plaintiff’s evidence'whether the stock was intended as security or as a gift or a bonus. This action is brought to foreclose tbe pledge and for a deficiency judgment.
Tbe defendant claims that be was a broker engaged in sell
1. On the first assignment of error it is urged that the circumstances shown clearly indicated that the defendant gave' the correct version of the transaction. These circumstances-in the main were: (a) No note or other evidence of indebtedness was given to the plaintiff, (b) No time of payment was-fixed, (c) No rate of interest was agreed on. (d) No demand for payment of any part of the principal or interest was made so long as the interest on the bonds was paid, nor for some time after the Granite Company ceased paying interest. (e) No satisfactory explanation was made as to why the corporate stock was given to the plaintiff if the transaction was in fact a loan; and (f) to hold that defendant hy-pothecated the bonds instead of selling them would mean that' defendant must have embezzled them.
These circumstances are quite persuasive, although the effect of the first and most convincing of them is mitigated by the fact that the parties had been friends for fifteen years, and plaintiff was defendant’s physician and had loaned him money on former occasions, although when prior loans were-made plaintiff had always taken a note. If we were passing-original judgment on the evidence as it appeared in print,, we might well reach the' conclusion that the plaintiff was not' entitled to recover, although there are some circumstances which tend to corroborate his evidence. But where fairly consistent and probable narratives are given by witnesses;
2. The interest on the bonds was payable semi-annually, and as interest coupons became due they were sent by the plaintiff to the defendant, who collected the same up to and including January 1, 1907, and sent his personal check to the plaintiff for the amount of. the interest so collected. Thereafter-the Granite Company defaulted in the payment of the interest on the bonds. No other amount was paid by the defendant on the loan. If these payments interrupted the running of the statute of limitations, it is conceded that the action is not barred. If they did not, then it is conceded that the action is barred.
It is argued that the theory upon which it is held that payment tolls the statute of limitations is that it is an acknowledgment of the debt and that there was no such acknowledgment here because the defendant simply acted as a medium through which the Granite Company paid its debt. Accepting the appellant’s statement of the law as being correct,
By tlie Court. — Judgment affirmed.
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