25-216 Part payment; acknowledgment of debt; effect upon accrual. - Nebraska Statutes

25-216. Part payment; acknowledgment of debt; effect upon accrual.In any cause founded on contract, when any part of the principal or interest shall have been voluntarily paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; Provided, that the provisions of this section shall not be applicable to real estate mortgages which have become barred under the provisions of section 25-202 as against subsequent encumbrancers and purchasers for value. SourceR.S.1867, Code § 22, p. 397; R.S.1913, § 7579; C.S.1922, § 8522; C.S.1929, § 20-216; Laws 1941, c. 35, § 2, p. 146; C.S.Supp.,1941, § 20-216; R.S.1943, § 25-216.Annotations1. Part payment2. Acknowledgment of debt3. Miscellaneous1. Part paymentPart payment of a debt does not have the effect of tolling the statute of limitations, unless payment is made under circumstances which justify the inference that the debtor recognizes the whole debt as an existing liability. T.S. McShane Co., Inc. v. Dominion Constr. Co., 203 Neb. 318, 278 N.W.2d 596 (1979).Where there was no proof of actual payment, endorsement of a payment placed on note by claimant's secretary did not operate to toll statute. In re Estate of Anderson, 148 Neb. 436, 27 N.W.2d 632 (1947).Under oral contract of hire, superseded by written contract, voluntary part payment of salary will operate to toll statute of limitations. Price v. Platte Valley Public Power & Irr. Dist., 139 Neb. 787, 298 N.W. 746 (1941).Where, after death of maker of note, a bank applies a balance in checking account to the credit of the maker as a payment upon the note, the payment thus made is not voluntary and will not toll the running of the statute. In re McEachen's Estate, 139 Neb. 250, 297 N.W. 153 (1941).Partial payment of principal or interest on promissory note by one joint maker with knowledge and consent of the other, out of funds in which they are jointly interested, tolls statute as to both. Kienke v. Hudson, 126 Neb. 551, 253 N.W. 687 (1934).Running of statute of limitations on a contract obligation will be arrested by any voluntary partial payment thereon, made or authorized by debtor. Massachusetts Bonding & Ins. Co. v. Steele, 125 Neb. 7, 248 N.W. 648 (1933).Payment on a note in bar of the statute must be considered as of the time of actual payment, rather than as of the date of the endorsement thereof on the note. In re Estate of Zehner, 124 Neb. 426, 246 N.W. 863 (1933).Part payment of debt or interest thereon tolls statute on mortgage securing debt. Bliss v. Redding, 121 Neb. 69, 236 N.W. 181 (1931).Voluntary part payment will toll statute of limitations, or will revive debt, if same is barred. Blair v. Willman Estate, 105 Neb. 735, 181 N.W. 615 (1921).Payment of interest on note by principal without authority, knowledge or consent of surety, will not stop running of statute of limitations as to surety. Dwire v. Gentry, 95 Neb. 150, 145 N.W. 350 (1914).Part payment of a debt may be made in any property agreed upon by the parties. Brockman v. Ostdiek, 79 Neb. 843, 113 N.W. 529 (1907).Part payment on debt secured by mortgage tolls statute limiting time within which foreclosure may be brought. McLaughlin v. Senne, 78 Neb. 631, 111 N.W. 377 (1907).Payment of dividend on stock held as collateral, applied on note, tolls statute. Bosler v. McShane, 78 Neb. 91, 113 N.W. 998 (1907).Part payment operates to revive a contract debt of its own vigor and not as evidence of an acknowledgment or new promise. Ebersole v. Omaha National Bank, 71 Neb. 778, 99 N.W. 664 (1904).Payment of interest on note tolls statute. Teegarden v. Burton, 62 Neb. 639, 87 N.W. 337 (1901).Payment made on a debtor's note by the sale of his property on execution, or other legal process, is not such part payment within the meaning of this section. Moffitt v. Carr, 48 Neb. 403, 67 N.W. 150 (1896).Payment of dividend by the assignee of an insolvent debtor will not operate to toll the statute. Whitney, Clark & Co. v. Chambers, 17 Neb. 90, 22 N.W. 229 (1885).The receipt and endorsement on a note by the holder of money realized from a collateral left for that purpose will remove the bar of the statute. Sornberger v. Lee, 14 Neb. 193, 15 N.W. 345 (1883).Payment made by one of the joint promisors of a partnership after dissolution of the partnership and without knowledge of other promisor tolls the statute only as to one actually paying. Mayberry v. Willoughby, 5 Neb. 368 (1877).Payment to remove bar of statute must be voluntary and not obtained by subterfuge. Kyger v. Ryley, 2 Neb. 20 (1873).Payment on specific account cannot toll statute on another account. In re Automatic Equipment Mfg. Co., 103 F.Supp. 427 (D. Neb. 1952).2. Acknowledgment of debtA mere reference to a promissory note, although consistent with its existing validity and implying no disposition to question its binding obligation, or a suggestion of some action in reference to it, is not such an acknowledgment as contemplated by the statute. Kotas v. Sorensen, 216 Neb. 648, 345 N.W.2d 1 (1984).An acknowledgment of an executor or administrator does not bind him as a party in his personal capacity. Degmetich v. Beranek, 188 Neb. 659, 199 N.W.2d 8 (1972).Voluntary payment is one that was intentionally and consciously made and accepted. Beacom v. Daley, 164 Neb. 120, 81 N.W.2d 907 (1957).Execution and delivery of real estate mortgage was an acknowledgment in writing of note. Alexanderson v. Wessman, 158 Neb. 614, 64 N.W.2d 306 (1954).A promise to pay a debt or other existing liability in a cause founded on a written contract, to prevent the running of the statute of limitations, must be in writing. Meyer v. Linch, 145 Neb. 1, 15 N.W.2d 317 (1944).Oral promise to pay will not toll running of statute on mortgage foreclosure. Brainard v. Hall, 137 Neb. 491, 289 N.W. 845 (1940).As against mortgagor, written extension agreement tolls the running of statute, even though not recorded. Hadley v. Corey, 137 Neb. 204, 288 N.W. 826 (1939).An account stated creates a new cause of action, and written acknowledgment of original items of indebtedness is not required. In re Estate of Black, Robinson v. Wittera, 125 Neb. 75, 249 N.W. 84 (1933).To remove bar of statute, debtor must unqualifiedly acknowledge an existing liability. France v. Ruby, 93 Neb. 214, 140 N.W. 175 (1913); Nelson v. Becker, 32 Neb. 99, 48 N.W. 962 (1891).A warrant issued by the proper authorities of a city in consideration of a valid indebtedness against it is a written acknowledgment of such indebtedness within the meaning of this section. Abrahams v. City of Omaha, 80 Neb. 271, 114 N.W. 161 (1907).Acknowledgment of indebtedness sufficient to toll statute should be made to creditor or some one authorized to represent him. Wallber v. Caldwell, 79 Neb. 418, 112 N.W. 584 (1907).A letter in which surety stated that he "will not longer be held good for the note" in case it be not promptly collected is sufficient acknowledgment within the meaning of this section. Harms v. Freytag, 59 Neb. 359, 80 N.W. 1039 (1899).Execution of a deed, if intended as a mortgage only, was not acknowledgment in writing of an existing liability, debt or claim within the provisions of this section. Ashby v. Washburn & Co., 23 Neb. 571, 37 N.W. 267 (1888).The unilateral crediting of defendant's debt without defendant's consent or knowledge was not a voluntary acknowledgment of the debt sufficient to toll the statute of limitations. Hejco, Inc. v. Arnold, 1 Neb. App. 44, 487 N.W.2d 573 (1992).3. MiscellaneousThe mere entry of credit by a creditor without consent of his debtor is without effect upon the statute of limitations and the fact that the debtor knows of an unauthorized entry of credit and makes no objection thereto is not alone sufficient to constitute a ratification of credit so as to toll the statute of limitations. T.S. McShane Co., Inc. v. Dominion Constr. Co., 203 Neb. 318, 278 N.W.2d 596 (1979).This section applies to actions founded on contract and has no application to actions founded on a tort liability. Hollenbeck v. Guardian Nat. Life Ins. Co., 144 Neb. 684, 14 N.W.2d 330 (1944).Oral request to defer settlement under indemnity agreement did not operate to toll running of statute of limitations. Lyhane v. Durtschi, 144 Neb. 256, 13 N.W.2d 130 (1944).A waiver of "all notice of any nature whatsoever" in the suretyship agreement does not operate to supply the surety's consent and authority to the making of partial payments in the future. W. T. Rawleigh Co. v. Smith, 142 Neb. 529, 9 N.W.2d 286 (1943), affirming 142 Neb. 527, 7 N.W.2d 80 (1942).In determining period of limitation in action to foreclose real estate mortgage given as security for note, this section and section 25-202 should be construed together. Steeves v. Nispel, 132 Neb. 597, 273 N.W. 50 (1937).Oral agreement to compensate one for past services, not performed as gratuity and not barred by statute, as well as for future services, out of promisor's estate by testamentary provision, is an independent contract to which statute requiring new promise to be in writing does not apply, where promisee performs agreement. Weideman v. Peterson's Estate, 129 Neb. 74, 261 N.W. 150 (1935).