Haver v. Schwyhart

39 Mo. App. 303 | Mo. Ct. App. | 1890

Ellison, J.

This action was begun May 16, 1887, and is on a promissory note dated February 5, 1870, due six months after date, for one hundred and fifty dollars, with ten per cent, interest from date. The note is endorsed with credits or payments as follows : February 3, 1871, fifteen dollars; February 3, 1872, fifteen dollars; July 1, 1877, five dollars. It does not appear who made, the'endorsements, the only evidence of payment was the endorsements themselves. Judgment was rendered for plaintiff and defendant appeals.

Unless the last endorsement was a payment, the note is barred by the statute and the question is, Does the endorsement alone show, prima facie, a payment by the debtor at the date stated in the endorsement % If the endorsement of a credit is in fact made by the holder of a note before it is barred, it will be evidence of payment made by the payor, for it is then against the interest of the holder to admit the credit. It will not be presumed he would enter a false credit while the note is alive in order to continue its life, when he could just as well begin his action. But, if the credit is made by the holder after the note is barred, the endorsement is not admissible, without showing it was authorized by the payor, for in this case it is to the interest of the holder to give himself a cause of action. Loewer v. Haug, 20 Mo. App. 163; Goddard v. Williamson, 72 Mo. 131.

But is the endorsement alone evidence that the payment was made at the time stated in the endorsment \ We think not. There should be other evidence showing that the endorsement was entered on the note at the time it purports to have been. Alston v. Bank, 4 Ark. 415; Beatty v. Clement, 12 La. Ann. 82; Maskel v. Pooley, 12 La. Ann. 661; Brown v. Hutchings, 14 Ark. 83; Ruddell v. Folsom, 14 Ark. 213; Wood v. Wilds, 6 Ark. 754; McGee v. Green, 6 Port. 537; Smith v. Sims, 9 Ga. 418; Adams v. Seitzinger, 1 Watts & Serg. 243; Clapp v. Ingersoll, 2 Maine, 83; Roseboon v. Billington, 17 John. 182.

The paper is in the hands of the holder and it is in his power to antedate the endorsement so as to restore a cause of action which lapse of time has defeated. Gfreenleaf in his work on evidence, section 121, states that the date of the endorsement will be inferred from its face in the absence of opposing circumstances. He cites an English case in support of his statement, but by reference to Alston v. State Bank, supra, it will be seen that such is not the rule as now recognized in England. And it is not thought to be the rule adopted in the greater part of the American states. In order then for the endorsement to be competent evidence in the case at bar, it must be shown aliunde the endorsement itself that it was made by the holder or by his direction, before the statute had run.

The judgment will, therefore, be reversed and the cause remanded.

All concur.