152 Mo. App. 726 | Mo. Ct. App. | 1910
This is a suit On two promissory notes and an account. The finding and judgment were for defendant and plaintiff prosecutes the appeal.
The petition is in three counts. The first declares upon a promissory note, executed by defendant, February 21, 1899, for the principal sum of $250; the second declares upon a promissory note, executed by defendant on February 7, 1901, for the principal sum of $200; the third declares upon an account for board and lodging a,nd prays judgment therefor in the amount of $1484.
In his ansAver, defendant admitted the execution of the notes mentioned in the first and second counts of the petition and pleaded that the same had been fully
It appearing from the pleadings that the case involved a long account, it was referred by the court to Perry Posit Taylor, Esq., a member of the St. Louis Bar,, who heard the evidence and made what appears to be a careful finding of fact and a complete report of the same, together with recommendations as to such judgment the court should give with respect 'to the various items involved. The evidehce in the cause is not sufficiently set forth in the abstract of appellant to enlighten the court on all of the points suggested. But the first and principal argument relied upon for a reversal of the judgment may be properly considered, for it relates to an interpretation of the pleadings and the construction of a writing in evidence; that is to say, the note sued upon in the first count of the petition. The note mentioned was introduced in evidence by plaintiff and being incorporated in the referee’s report is before us for review. The note referred to is as follows:
“ $250.00. February 21, 1899.
After date for value received---promise to pay to C. Furstenfeld or order two hundred and fifty dollars payable at-with interest payable annually at the rate of-per cent per annum-until paid. In*730 terest when due to become principal and draw-per cent interest. If this note is not paid when due 8 agree to pay all reasonable costs of collection including attorney’s fees and also consent that judgment may be entered for these amounts by any justice of the peace.
V. Furstenfeld.”
By scrutinizing the note it appears that though it is dated February 21,1899, no date is mentioned therein ' as to when it should fall due and it appears to stipulate no particular rate of interest. That defendant executed the note involved is conceded and the referee so found the fact, for he recommended judgment against defendant for the face of the note, $250, together with interest thereon at the rate of six per cent from the date of filing the petition, which is treated as a demand for payment. It is said there was no evidence in the case that a demand was made before the petition was filed. In the circuit court defendant filed exceptions to the referee’s report and one of them relates to the matter now under consideration. The exceptions were overruled and the finding and recommendation of the referee were affirmed, to the effect plaintiff should recover of defendant the amount of the note together with interest at six per cent from the date of filing the petition. But the finding on defendant’s counterclaim was for him in an amount sufficient to extinguish all indebtedness to plaintiff and for a small balance as well.
It is argued there appears in the judgment an erroneous conclusion of law on the face of the instrument for the reason no date having been mentioned when the note should fall due, it became due the day it was executed and drew interest accordingly. There can be no doubt under our statute that on contracts for the payment of money when no rate of interest is mentioned, interest accrues at the rate of six per cent after demand. But it is said all promissory notes afford interest after the date they become due unless there is a stipulation
The referee recommended an accurate legal conclusion on the face of the instrument and the court properly decláred the same in the judgment given.
But it is said the note suggests it was to draw interest at the rate of eight per cent;for in one of the lower
In the first count of the petition, plaintiff described the note as having been executed by defendant February 21, 1899, whereby he promised to pay plaintiff $250 with interest from date at the rate of eight per cent until paid and stated that such note was filed with the petition as “Exhibit A”. In the first few lines of defendant’s answer he admits “that he did execute the note described in the said first count of said petition” and then proceeds to plead that he had long since paid and discharged the same. From these words in the answer, it is argued plaintiff solemnly admitted the note drew interest from date at the rate of eight per
There are several other arguments advanced for a reversal of the judgment but they all relate to the sufficiency of the evidence to support the recommendations of the referee, which were adopted by the court and affirmed in its judgment. We are unable to dispose of these matters on their merits for the reason the evidence is not before us. There can be no doubt of the rule of decision to the effect that the findings of a referee in an action of law are regarded on appeal as a special verdict and will not be disturbed if there is substantial evidence to support them. [Berthold v. O’Hara, 121 Mo. 88, 25 S. W. 845; Citizens’ Nat’l Bank v. Donnell, 172 Mo. 384, 402, 72 S. W. 952; Tufts v. Latshaw, 172 Mo. 359, 72 S. W. 679; Citizens’ Coal, etc., Co. v. McDermott, 109 Mo. 306, 84 S. W. 459.] A presumption goes in favor of the correct conduct of a proceeding in a court of general jurisdiction and in aid of the verdict and its judgment. In other words, unless it is made to appear to the contrary, the presumption is that the referee’s finding approved by the judgment of the trial court, is supported by the evidence and that the referee properly weighed
For the reasons given, we decline to review the meager portions of the evidence set forth in the abstract. The judgment should be affirmed. It is so ordered.