31 Mo. App. 180 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This action is brought to recover on a promissory note for nine hundred dollars, given by the defendant and another to the plaintiff on the nineteenth of October, 1871, and payable one year after date. The note was barred by limitation at the time the action was commenced, unless it was taken out of the statute by
The interesting question remains whether,* in caso there are several items of indebtedness having different periods of time to run and expiring by limitation at different times, and the debtor makes payments without specifying upon which item they are to be applied, the creditor can, by the mere act of applying them to a particular item without the privity of the debtor, take that item out of the statute of limitations. The theory on which part payment of a debt takes it out of the statute of limitations is, that it is a recognition by the debtor of the continued existence of the debt and of its obliga-; tory character. Where one who owes to another several distinct items of debt makes general payments, without directing to which item the payment shall be applied..
Another question is this: The note sued on was made payable to the plaintiff as trustee for his wife, now deceased. It appeared from the evidence that the plaintiff’s wife died in 1881, and that no letters of administration had ever been taken out upon her estate. It is, therefore, urged that the action is hot well brought, but that it would be properly brought in the name of an administrator of Mrs. Beck, deceased. This point is clearly not well taken. In the first place, no defence •other than the statute of limitations was pleaded. In
the-judgment is affirmed.