rehearing">

Rehearing denied February 13, 1924.

On Petition for Rehearing.

(222 Pac. 1094.)

BROWN, J.

The defendant has petitioned this court for a rehearing and for a modification of the opinion filed January 14, 1924. The petition asserts that the court failed to consider the point relied upon by respondent and set forth under paragraphs 4 and 5, on pages 20 and 24 of his brief, which relates to the consequence of the commencement of an action against Schall alone, without joining King, his comaker. Defendant claims, in effect, that plaintiff, having elected to sue Schall alone, is bound by the rules of law applicable to several contracts, uncontrolled by statutes like ours hereinafter set out. He urges with much force that the payment of interest by defendant’s co-obligor having been made without the knowledge or authority of the defendant, such payment cannot toll the statute as to the defendant’s several obligation.

This is a several action, commenced against one of the comakers of a joint and several promissory note. In our opinion, we held that the payment of interest by the defendant’s co-obligor tolled the statute of limitations as to both makers of the note sued upon. Our ruling is based upon a statute essentially different from that of most other states. It reads:

“Whenever any payment of principal or interest has been or shall be made upon an existing contract, *37whether it be bill of exchange, promissory note, bond, or other evidence of indebtedness, if such payment be made after the same shall have become dne, the limitation shall commence from the time the last payment was made.” Section 25, Or. L.

The “existing contract” embraced within the provisions of Section 25, Or. L., in its application to the case at bar, is the joint and, several promissory note that was made by G-. P. Schall and Will R. King. That was the “existing contract” pleaded. It was the “existing contract” introduced in evidence. That contract was kept alive as to both makers, by the payment of the interest thereon by one of its joint makers. This action is a several action, but it is based upon a living, joint and several contract to pay money.

It is true, as argued by defendant, that the plaintiff had a right to elect his remedy and sue each maker separately or both jointly.

“A joint and several contract is with each promisor and also with all jointly, with the result that they are all liable together on the joint obligation, and each individual is liable upon his separate obligation, and they may be sued jointly or severally as the promisee may elect.” Anderson v. Stayton State Bank, 82 Or. 357, 373 (159 Pac. 1033, 1039).

See 13 C. J. 576.

Illustrative of the different views relating to the tolling of the statute of limitations by joint obligors, we <]uote:

“One of the frequent instances in which the question of the effect upon other joint obligors of a part payment by one of them arises is that of the payment by one of several makers of a joint and several note. There the rule, founded on the principle of agency, has been followed in many cases, it being held that payment by one joint maker, before the statute has *38run against the demand, will start the statute running anew as to the others. * * So it has been held that payment of interest * * by a joint maker of a promissory note, before the statute of limitations has run against it, will prevent the running of the statute as to all the makers. * * In other jurisdictions, however, the contrary view is held, it being declared that such a payment does not affect the other makers, when made without their assent or ratification, and is only regarded as extending the statutory period so far as the one making the payment is concerned.” 17 E. C. L., pp. 939, 940.

Again, ‘ ‘ The courts are not in harmony as to the effect of a partial payment made by one of several joint debtors. The weight of authority, however, supports the rule that such payment made without the acquiescence, consent, or ratification of the other joint debtor will not operate to suspend the running of the statute of limitations, as to him, and the same rule applies where the contract of indebtedness is joint and several. * # In some jurisdictions views contrary to those heretofore set forth in this section prevail, and a payment made by one before the bar is complete is regarded as the act of and suspends the running of the statute as to all, provided the payment is made in good faith.” 25 Cyc. 1385, 1386.

Among the authorities noted as supporting the latter proposition is Partlow v. Singer, 2 Or. 307, cited in our original opinion, and followed by all subsequent decisions of this court, as noted in that opinion.

In most states, payment of interest or a part of the principal by one joint debtor without the knowledge of the other does not affect the running of the statute of limitations as to the other obligor; but, due to our peculiar statute, our court has held otherwise. In applying Section 25 of our statute, this court has invariably held, in effect, that payment by one joint debtor is payment for all, the one acting virtually as agent for the rest. The holding is that the provision *39of our statute reading: “The limitation shall commence from the time the last payment was made,” applies to each maker of the contract.

In this action, Section 25 alone fixes the time when the statute of limitations commences to run. The payment of interest by King was not a new promise. Under the statute, as construed uniformly by this court, it was a continuation of the original promise to pay, and that payment dates the commencement of the period of limitation.

Bound as we are by the statute and its well-understood meaning, as construed by this court in a number of cases cited in the original opinion, we must deny defendant’s petition. Rehearing Denied.

Mr. Justice Coshow, having been appointed after the hearing of this case, did not participate in the decision.

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