CHARLESTON.

#### H. L. Wise *v.*J. W. Wise

(No. 5413)

Submitted March 2, 1926.

Decided March 9, 1926.

1. Assumpsit, Action *op*— Where *Plaintiff Has Fully Performed, and Nothing Remains But Duty on Part of Defendant to Pay Money, Plaintiff May Recover U’nder Common Counts in Assumpsit, and Need Not Declare Specially; Action Being Founded on Implied Undertaking, and Special Contract, Though in Writing, Being Only Evidence of Such Undertaking.*

Where the plaintiff has fully performed the contract on his pant and nothing remains but a duty on the part of the defendant to pay money due the plaintiff thereunder, the plaintiff may recover under the common counts in assumpsit, and need not declare specially. In such case the action, is founded on the implied undertaking, and the special contract, though in writing, is only evidence of that undertaking, (p. 188.) (Assumpsit, Action of, 5 C. J. § 22.)

2. Limitation op *Actions*— Where *Defendant, for Loan by Plaintiff, Promises to Pay to Third Party, From Whom Plaintiff Borrowed Money, Principal and Interest, Plaintiff’s Cause of Action Does Not Accrue as Respects Limitations Until■ Defendant Breaches Agreement, Although Plaintiff’s Note to Third Party Has Been Renewed; Where Defendant, for Money Lent Him by Plaintiff, Promises to Pay Third Party, From Whom Plaintiff Borrowed Money, Principal With Interest, Thereon, Defendant’s Failure and*
      *187
      *Refusal to Pay Interest on Plaintiff’s Note, Which had Been Renewed, Held to Constitute Breach of Agreement as Respects Limitations.*

Where the defendant in consideration of money .loaned him by the plaintiff, promises to pay to a third party, from whom the plaintiff borrows the money for that purpose, the principal sum with interest thereon until paid, plaintiff’s cause of action does not .accrue until after the defendant breaches Ms agreement, although plaintiff’s note to such third party has been renewed in the meantime; and the defendant’s failure and refusal to pay interest on such note will constitute a breach of such agreement, (p. .189.)

(Limitation of Actions, 37 C. J. § 191 [Anno].)

3. *Indemnity*— Where *Defendant, For Money Lent Him by Plaintiff, Promises to Pay Third Party From Whom Plaintiff Borrowed Money, Principal Sum With Interest, Plaintiff’s Right of Action for Breach of Such Agreement is Not Affected by Fact That He Had Not Discharged Obligation to Third Party.*

In such case plaintiff’s right of action is not affected by the fact that he has not discharged his obligation to the third party, (p. 190.)

(Indemnity, 31 C. 3". § 75.)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Error to Circuit Court, Mineral County.

Action by H. L. Wise against J. W. Wise. Judgment of nil capiat on a directed verdict, and plaintiff brings error.

*Reversed; verdict set aside; new trial awarded.*

*William MacDonald,*for plaintiff in error.

*Ernest A. See*and *Chas. N. Finnell,*for defendant in error.

Miller, Judge-.

From a judgment of nil capiat on a directed verdict, plaintiff prosecutes the present writ of error.

The declaration contains only the common counts in as-sumpsit. Defendant pleaded the general issue and the statute of limitations. After plaintiff’s case had been presented to the court and jury, the court sustained a motion to exclude the evidence, and directed a verdict for defendant, on the *188theory that the action was barred by the statute of limitations.

Plaintiff’s testimony was to the effect that, in February 1918, in closing up their partnership business, he and the defendant, his brother, needed $2,500.00, which he borrowed from the First National Bánk of Romney, securing his personal note by a deed of trust on his own property; that the defendant promised to repay to the bank the money so obtained and secured, with interest on the same until paid; that the defendant kept the interest paid for a time, and then failed and refused to make further payments to the bank; and that he had paid the interest from the time of defendant’s refusal to do so. Plaintiff offered in evidence the following paper writing: “Williamsport, W. Va. Feb. 8, 1918. For value received I hereby promise and bind myself to H. L. Wise that I will pay to First Nat. Bank of Romney, W. Va., $2500.00 and interest on same until paid for a deed of trust executed to said Bank for said amount, $2500.00 and interest for deed of trust by H. L. Wise and wife, bearing date of February 15th, 1918. (Signed) J. W. Wise.” The court permitted this writing to be read to the jury, but later, on motion of defendant’s counsel, excluded all of plaintiff’s testimony.

Defendant’s counsel argue that plaintiff can not recover under the evidence because he failed to declare on the paper writing of February 8, 1918, relied on as evidence of the terms of the agreement between the parties. “Where a plaintiff has done everything which has to be executed on Ms part, and nothing remains to be done but the performance of a duty oh defendant’s part to pay money due the plaintiff under the contract, the plaintiff may recover under the common counts in assumpsit, and need not declare specially, however special the contract which has been performed may have been. But in such eases the measure of damages is fixed by the special contract.” Burks’ Pleading and Practice (2nd ed.) sec. 73, page 119, citing our cases of *Jackson*v. *Hough,*38 W. Va. 390; *Empire Coal & Coke Co.*v. *Hull Coal & Coke Co.,*51 W. Va. 474; *Lawson*v. *Williamson Coal & Coke Co.,*61 W. Va, 669; *Lord*v. *Henderson,*65 W. Va. 321; *Bannister*v. *Victoria Coal & Coke Co.,*63 W. Va. 502; and *Mankin*v. *189
      *Jones,*68 W. Va. 422. In sncb cases tbe action is not founded on tbe written instrument or special contract, but on tbe implied undertaking, and tbe writing is only evidence of tbat undertaking. *Blair*v. *Wilson,*28 Grat. 165; Burks, supra, page 120. Our cases above cited fully answer defendant’s contention, as well as bis objection to admitting in evidence tbe written contract of February 8, 1918.

Tbe casbier of tbe First National Bank of Bomney testified tbat on February 9, 1918, tbe bank loaned plaintiff tbe sum of $2,500.00, for wbicb be gave bis note, secured by a deed of trust on real property owned by bim; tbat on 'November 1, 1918, tbe defendant paid interest on tbe note to February 9, 1919, in tbe sum of $150.00, and on May 1, 1919, interest for six months, amounting to $75.00; tbat on February 9, 1920, defendant paid $75.00 interest on a renewal of tbe original note, and again on August 5, 1920, $75.00 interest on tbe same renewal. It does not appear wben tbe original note became due, but tbe testimony of tbe bank’s casbier shows tbat $225.00 interest was paid on this note, wbicb would extend tbe interest to about August 9, 1919.

Tbe deed of trust provided tbat tbe conveyance was made, “in trust, nevertheless, to secure tbe payment of a note of even date herewith of tbe parties of tbe first part for tbe sum of two thousand five hundred ($2500.00) dollars, with interest from date, six months after date, to Tbe First National Bank of Bomney, or order, and also, to secure tbe payment of any renewal or renewals of said note in whole or in part. ’ ’

Defendant relies on tbe proposition tbat where tbe declaration is on tbe common counts in assumpsit for money bad and received tbe suit is barred after five years from tbe time plaintiff’s right of action accrues. But wben did right of action accrue in this case? Was it not wben defendant breached bis agreement to take care of plaintiff’s obligation to tbe bank? It could not have accrued before plaintiff’s note to tbe bank became due and payable. And it does not appear wben tbe original note became due. Tbe testimony of tbe bank’s casbier is tbat defendant paid interest on tbe original note to about August 9, 1919. If we can infer from this fact that tbe *190maturity of tlie note was on that date, the action, commenced July 7, 1924, was brought within the time required by the statute. The only evidence against this theory of fact is the recital in the deed of trust that it ivas to secure a note, “six months from date. ’ ’

Regardless of the date of maturity of plaintiff’s original note, it is to be observed that by his contract defendant bound himself to plaintiff to pay the bank “2500.00 and interest on same until paid for deed of trust,” etc. He did not bind himself to pay any particular- note, nor to pay plaintiff on demand, but to discharge plaintiff’s obligation to the bank, including principal and interest, and to pay the interest until such obligation was discharged. And he fully complied with his agreement until he fdiled and refused to make further payments to the bank. While the written agreement of February 8, 1918, set out the amount to be paid, and the manner in which, or to whom, it was to be paid, it did not specify any particular time within which the principal sum was to be discharged; and as long as defendant was not in default, plaintiff had no right to demand the return of his money, and had no right of action. There is nothing in the record to show that the bank demanded payment by plaintiff. Even if the note was renewed, that was an act of the plaintiff, one of the parties to the contract, acquiesced in by defendant as evidenced by his payment of interest on the renewal note. And the subsequent acts of the parties are to be considered in determining the intention of such parties, where there is ambiguity or uncertainty as to their intention. *Wetterwald*v. *Woodall,*83 W. Va. 647; *Refining Company*v. *Coal Company,*92 W. Va. 479; *Ramage*v. *Oil Company,*94 W. Va. 81. Plaintiff says that defendant promised to repay him in a particular manner, and it appears that for a period of two and a half years the latter did comply with the agreement, apparently to the satisfaction of both parties. Plaintiff had no right to anticipate a breach of the contract while defendant kept up his payments. *Swiger*v. *Hayman,*56 W. Va. 123.

Defendant seeks to deny plaintiff recovery in this action on the ground that the latter had not, at the time of the institution of the suit, repaid the bank. But plaintiff was not a *191surety for defendant. And there is nothing in the record tending to show that the bank knew of the contract between the parties, or why the defendant was paying interest on the loan to plaintiff. The transactions between plaintiff and the bank, and between plaintiff and defendant were entirely independent. It mattered not where plaintiff secured the money alleged to have been paid to defendant, or how it was to be repaid, by the transaction defendant became plaintiff’s debtor. Plaintiff’s action is based upon his contract with defendant; and he was injured immediately upon the latter’s failure and refusal to comply with the agreement, for from that time he was required to pay to the bank the interest which defendant promised to pay, and in view of defendant’s breach must anticipate he would have to pay the principal sum also. Before bringing suit he waited almost five years after defendant’s default.

The judgment will be reversed, the verdict of the jury set aside, and -the plaintiff awarded a new trial.

*■Reversed; verdict set aside; new trial awarded.*