This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A part payment upon a debt made by the principal debtor does not, according to the weight of authority, prevent the running of the statute in favor of a surety ;1 nor does it waive the bar of the statute after it has once run.2 Certain stockholders of a corporation executed an accommodation note to obtain a loan for the corporation which was not a party to the note. Subsequently the corporation made payments upon such note. These payments were held not to waive the bar of the statute.3 The fact that the surety at the request of the creditor writes to the principal a letter urging him to pay the debt, does not make the surety a party to a payment made in consequence thereof by the maker, and such payment does not operate to prevent the statute from running in favor of the surety.4 This principle has been applied by some authorities to a case where a husband has made a payment upon a debt secured by a mortgage executed jointly by himself and his wife, encumbering her property,5 or community property,6 or which is secured by a vendor's lien upon land belonging to her.7 Such payments have been held not to waive the bar of the statute as to her. Even where payment by the principal does not extend limitations as to a surety the surety may be bound if he authorizes such payment. Thus A was principal and B, C and D his sureties. The creditor called on B and C for payment, and they asked him to see A. A made a payment as the result of the creditors' application to him. Such payment was held to extend the time of limitations as to B and C, but not as to D.8 Some authorities hold, on the other hand, that payments made by the principal prevent the statute of limitations from running in favor of the surety.9 This principle has been applied where such payments were made before the cause of action was barred.10 Thus under this principle, where a husband and wife executed a mortgage on their homestead, and the husband made payments upon such debt, such payments have been held to prevent, the running of the statute as to the wife.11 So where the mortgage covers her separate property a payment by the husband on his debt has been held to prevent limitations from running against the mortgage.12 In jurisdictions where a payment by the principal prevents limitations from running in favor of the surety and an in-dorser is treated as a surety, the question is presented, whether payments by the maker of the note can prevent the statute of limitations from running in favor of the indorser. On this question there is a divergence of authority.13 Payments made by a surety, as upon an official bond,14 have been held to prevent limitations from running in favor of the maker.
Stubblefield v. McAuliff, 20 Wash. 442; 55 Pac. 637; Bank v. Cotton, 53 Wis. 31; 9 N. W. 926; Cowhick v. Shingle, 5 Wyom. 87; 63 Am. St. Rep. 17; 25 L. R. A. 608; 37 Pac. 689.
3 Sigourney v. Drury, 14 Pick. (Mass.) 387; Moore v. Beaman, 111 N. C. 328; 16 S. E. 177; Moore v. Goodwin, 109 N. C. 218; 13 S. E. 772; Partlow v. Singer, 2 Or. 307; Silman v. Silman, 2 Hill (S. C.) 416.
1 Hunter v. Robertson, 30 Ga. 479; Mozingo v. Ross, 150 Ind. 688; 65 Am. St. Rep. 387; 41 L. R. A. 612; 50 N. E. 867; Meitzler v. Todd, 12 Ind. App. 381; 54 Am. St. Rep. 531; 39 N. E. 1046; Steele v. Souder, 20 Kan. 39; Winchell v. Hicks, 18 N. Y. 558; Shoemaker v. Benedict, 11 N. Y. 176; 62 Am. Dec. 95; Hance v. Hair, 25 O. S. 349.
2 Kallenbach v. Dickinson, 100 111. 427; 39 Am. Rep. 47; Davis v. Mann, 43 111. App. 301.
3 Patterson v. Collier. 113 Mich. 12; 67 Am. St. Rep. 440; 71 N. W. 327.
4 Borden v. Fletcher's Estate, 131 Mich. 220; 91 N. W. 145.
5 Curtiss v. Perry, 126 Mich. 600; 85 N. W. 1131.
6 Stubblefield v. McAuliff. 20 Wash. 442; 55 Pac. 637.
7 Poindexter v. Rawlings, 106 Tenn. 97; 82 Am. St. Rep. 869; 59 S. W. 766.
8 Winchell v. Hicks, 18 N. Y. 558.
9 Moore v. Carr, 123 N. C. 425; 31 S. E. 832; Woonsocket Institution v. Ballou, 16 R. I. 351; 1 L. R. A. 555; 16 Atl. 144; Dickson v. Gourdin, 29 S. C. 343; 1 L. R. A. 628; 7 S. E. 510.
10 Burleigh v. Stott, 8 B. & C. 36; Moore v. Goodwin, 109 N. C. 218; 13 S. E. 772.
11 Skinner v. Moore, 64 Kan. 360; 91 Am. St. Rep. 244; 67 Pac. 827; Clift v. Williams, 105 Ky. 559; 51 S. W. 821; 49 S. W. 32S: Roberts v. Roberts, 10 N D. 531; 88 N. W. 289.
13 That the bar is pot waived a? to the indorser. Maddox v. Duncan, 143 Mo. 613; 65 Am. St. Rep. 678; 41 L. R. A. 581; 45 S. W. 688. That the bar is waived as to the indorser. Hooper v. Hooper, 81 Md. 155; 48 Am. St. Rep. 496; 31 Atl. 508; Garrett v. Reeves, 125 N. C. 529; 34 S. E. 636.