Pierce v. Stitt

UeRWIN, J.

It appears from the evidence that the services were performed by Herdegen soon after the execution of the power of attorney, and between the 14th and 20th of September, 1885; that appellant went with Herdegen to New York ■and paid his own expenses. He also paid Herdegen’s bill, the last payment being made December 3, 1885, and took a receipt in full. Appellant also took an assignment of the claim Trom Herdegen December 8, 1885. It also appears that dur *64 ing Mrs. Stitt’s lifetime, and in October, 1885, Herdegen presented bis bill for services to ber and asked for a settlement. Appellant offered to prove that Mrs. Stitt made two payments of $5 each, one September 5, 1891, and tbe other August 6, 1897, wbicb evidence was objected to, on tbe ground that tbe witness was incompetent to testify under tbe statute, and ruled out. Tbe court was clearly right in excluding this evidence, it being a transaction with deceased and incompetent, and it does not appear that appellant complains of tbe ruling.

Tbe main contention of appellant for a reversal is that tbe claim for tbe $310 paid to Herdegen is upon a sealed instrument and does not outlaw short of twenty years. There is no dispute but that tbe six-year statute bad run upon the-claim long before it was filed. It is not material in this case whether tbe claim was one against deceased and assigned to Pierce, or a claim of Pierce against deceased for moneys paid out by him for ber benefit. In either case it outlawed in six years. It was not a claim upon a sealed instrument, within tbe meaning of subd. 2, sec. 4220, Stats. 1898, wbicb provides that an action upon a sealed instrument must be commenced within twenty years. It is _ very plain that tbe action upon tbe account in suit is not within this statute. Tbe proanise to pay is not in tbe instrument itself, but independent of it. Tbe power simply authorized tbe expenditure of tbe money, and tbe law implies a promise to- pay. Tbe action is upon tbe implied promise, and not upon tbe sealed instrument. Due cker v. Goeres, 104 Wis. 29 , 80 N. W. 91 ; Phelan v. Fitzpatrick, 84 Wis. 240 , 54 N. W. 614 ; Spencer v. Holman, 113 Wis. 340 , 89 N. W. 132 . It follows that the judgment of tbe court below is correct and should be affirmed.

By the Oowrt. — Tbe judgment of tbe court below is affirmed.