13-80-115. Endorsement by payee - effect.

Statute text

Nothing in this article shall alter, take away, or lessen the effect of a payment of any principal or interest made by any person; but no endorsement or memorandum of any such payment, written or made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment is made, or purports to be made, shall be deemed sufficient proof of the payment so as to take the case out of operation of the provisions of this article.

History

Source: L. 86: Entire article R&RE, p. 701, 1, effective July 1.

Annotations

Editor's note: This section is similar to former 13-80-123 as it existed prior to 1986.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Since 13-80-115 is similar to former 13-80-123 as it existed prior to the 1986 repeal and reenactment of this article, relevant cases construing that provision have been included with the annotations to this section.

This section establishes a rule of evidence and not a rule of pleading. Meyer v. Binkleman, 5 Colo. 262 (1880); MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410 (1942).

It was not intended to lessen the effect of a payment, but to require proof that a payment was in fact made, whenever it shall be relied upon to revive an action otherwise barred. Without such a requirement there would practically be no bar to an action upon a promissory note, for the simple indorsement of a credit without payment in fact, would always operate to revive the cause of action. Under this section, however, the plaintiff must not only state a subsisting cause of action, but he must prove such a cause. Meyer v. Binkleman, 5 Colo. 262 (1880); MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410 (1942).

A voluntary payment by the defendant who owes the principal debt, or is bound for it, will stop the running of the statute. Nat'l State Bank v. Rowland, 1 Colo. App. 468, 29 P. 465 (1892); Adams v. Tucker, 6 Colo. App. 393, 40 P. 783 (1895); Dodger v. East, 100 Colo. 36, 64 P.2d 1270 (1937).

Since it amounts to acknowledgment from which new promise is implied. The principle upon which a part payment by a debtor will prevent his availing himself of the bar of the statute is that such a payment amounts to an acknowledgment of the debt, and from an absolute acknowledgment the law implies a new promise founded upon the old consideration. Sears v. Hicklin, 3 Colo. App. 331, 33 P. 137 (1893).

To pay subsisting debt then due. The authorities generally declare that the new promise implied by a part payment is a promise to pay a subsisting debt then due; not a debt which might thereafter become due under the terms of the contract. Buckingham v. Orr, 6 Colo. 587 (1883).

The mere indorsement of a partial payment upon a note will not in and of itself toll the running of the statute of limitations. Christensen v. Hugh M. Woods Mercantile Co., 104 Colo. 403, 91 P.2d 999 (1934); MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410 (1942).

There must be payment and clear acknowledgment of additional debt. In order to avert the bar of the statute of limitations a payment of a portion of an admitted debt must be made and accepted by the creditor and accompanied by circumstances amounting to an unqualified acknowledgment of more being due from which a promise must be inferred to pay the remainder. Holmquist v. Gilbert, 41 Colo. 113, 92 P. 232 (1907); Ferris v. Curtis, 53 Colo. 340, 127 P. 236 (1912).

Payment must be voluntary and by the debtor to the creditor. Sears v. Hicklin, 3 Colo. App. 331, 33 P. 137 (1893).

For payment of interest being sufficient acknowledgment of debt, see Purdy v. Deprez, 39 Colo. 68, 88 P. 972 (1906).

Indorsement on note of amount standing to maker's credit on books of bank is ineffective. The indorsement on the promissory note of a debtor to a banking corporation, without the assent of the maker, of a balance to the maker's credit standing on the books of the corporation, does not constitute a voluntary payment on the note, and is not effective to stop the running of the statute of limitations as to the note. Nat'l State Bank v. Rowland, 1 Colo. App. 468, 29 P. 465 (1892).

Indorsement of partial payment on note is insufficient. "Generally speaking, the rule is well established that the mere indorsement of a partial payment upon a note will not in and of itself toll the running of the statute of limitations." MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410 (1942).

Burden of proof is upon plaintiff. In an action on a promissory note the burden of proving part payment so as to remove the bar of the statute of limitations is upon the plaintiff. Manby v. Sweet Inv. Co., 78 Colo. 371, 242 P. 51 (1925); MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410 (1942).