Elsea v. Pryor, 87 Mo. App. 157

87 Mo. App. 157 | Mo. Ct. App. | 1901

BOND, J.

The allowed demand upon which plaintiffs sued has all the attributes of a judgment so far as -fixing the amount then due upon the note, which was the basis of the allowance, and merging the same into the form of indebtedness expressed by the allowance. Rice, Stix & Co. v. McClure and Harper, 74 Mo. App. 379; Slate Co. v. Cornice & Iron Co., 62 Mo. App. 569; Eppright v. Kauffman, 90 Mo. 25. The testimony of the plaintiff showing that the seventy-five cents received by him from defendant in the form of medicine, was entered upon the back of the note; also showing that defendant did not at that time owe him (plaintiff) . anything except what was due upon the allowed demand based on said note, which allowance and also the subsequent payment of dividends thereon by the assignee, was also indorsed on said note, makes it reasonably inferable that the parties intended the transaction in question to go as a credit on the allowed demand. If such was their purpose, the amount then paid had the effect of reviving the debt evidenced by the allowed demand, even if it had been previously, barred'by the statute of limitations, for the rule is, that it is the fact of the partial payment of the note or instrument which is barred by the statute of limitations and not the formal crediting thereof on the back of the note or instrument which revives the debt. Henry v. Diviney, 101 Mo. 378. It is thus apparent that there was a sufficient basis in the evidence for the finding of the court that the allowed demand was revived on the date of this last transaction (July 15, 1898), and as the suit was brought in a few months thereafter, it is clear that there was no error in overruling the demurrer to the evidence.

Moreover, the statute of limitations set up as a defense ■in this action was the lapse of ten years -after the accrual of the cause of action and before the institution of suit thereon. The cause of action arose on the date of the allowance of the demand sued upon, to-wit, February 2, 1886. At the time the statute of limitations evidently relied upon by the defendant, to-wit, section 4297 of the revision of 1899, even if applicable to an allowance of a claim by an assignee, had not been enacted. It has been decided th.at this statute has no retrospective operation. McElroy v. Ford, 81 Mo. App. loc. cit. 505; Cranor v. School Dist., 151 Mo. 119. Neither can-we concur in the view of the learned counsel for appellant that •the statute of five years was available as a defense to this action. It is sufficient to -say that the answer did not plead the bar of this statute, wherefore it can not be interposed to plaintiff’s claim. Murphy v. De France, 105 Mo. 53. The judgment is for the right party and is affirmed.

All concur.