Bass v. Hueter

SHENK, J.

This is an appeal from a judgment of non-suit in an action on a claim against the estate of Ernest L. Hueter, deceased. The plaintiffs alleged that on or about the seventeenth day of October, 1903, Ernest L. Hueter borrowed from Ellen Bass the sum of $18,000 and agreed in writing to repay the same, as evidenced by a promissory note of which the following is a copy:

“18,000. 17th day of October, 1903

“I promise to pay to Ellen Bass or order, the sum of eighteen thousand (18,000) Dollars, with interest thereon at the rate of six (6%) per cent per annum, three months after notice after one year from date.

“Ernest L. Hueter.”

Ellen Bass died on June 17, 1904. Her estate was administered upon and on September 5, 1905, was distributed to the plaintiffs herein. Ernest L. Hueter died on November 9, 1923. His will was admitted to probate and the defendants were appointed as executors. Thereafter, on April 4, 1924, a notice on behalf of said distributees, the plaintiffs herein, was caused to be served upon the defendants as such executors to pay said promissory note. Upon the failure to pay the note and the rejection of a claim based thereon against the estate of Hueter, this action was brought.

By answer the defendants, among other things, pleaded the statute of limitations as a complete bar to any relief demanded by the plaintiffs. At the trial it appeared that no notice or demand for payment had ever been given or made upon Ernest L. Hueter during his lifetime either by Ellen Bass, the payee of the note, during her lifetime, nor by or on behalf of the plaintiffs herein until the aforesaid notice of April 4, 1924.

The defendants’ motion for a nonsuit was made and granted on the ground that no special circumstances appeared to relieve the plaintiffs from the bar of the statute and that therefore the statutory period of limitations had long since run. Whether the trial court was right in so

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deciding is the crucial point on this appeal. The determination of the point rests primarily upon the effect to be given the clause in the note fixing the maturity thereof “three months after notice after one year from date.” By the use of this language the intention of the parties was clear that upon the expiration of one year from October 17, 1903, the payee of the note could notify the maker that the note would be due three months thereafter.