96 Mo. App. 490 | Mo. Ct. App. | 1902
This action originated before a justice of the peace and is based on tbe following written contract:
“December 30, 1893.
“In consideration of tbe sum of $237.50, received tbis day of Selden P. Spencer, I bave sold and do sell to bim 250 shares of tbe capital stock, full paid and non-assessáble in tbe St. Louis Mining and Milling Company of Montana and agree to buy back tbe said stock at its cost price and at any time on five days’ notice after June 1, 1894, and before October 1, 1894.
“Arthur Mittelberg.
“Sept. 29, 1894: Extended to Jan’y 1, 1895.
“A. M.
“Dec. 26, 1894. Tbis guarantee is for tbe consideration extended until I bave given a ten days’ notice of my willingness to take tbe stock at tbe price paid. ‘ Arthu r Mittelberg. ’ ’
Before tbe expiration of tbe period originally limited in which Mittelberg was bound to take back tbe stock and repay Spencer its purchase price, tbe latter demanded that be take it back. Mittelberg was not ready to do so at that time and desired an extension of bis obligation. Spencer told bim there was no objection to extending it provided be (Mittelberg) would continue bis liability to redeem, which Mittelberg was willing to do, but wanted an option himself to take up tbe stock when be chose. Spencer was willing to extend bis liability to redeem, and Mittelberg was willing to extend bis liability provided be might redeem at bis pleasure, and so tbe clause below tbe original memor
This action was begun June 1, 1901, no further demand having been made by Spencer that Mittelberg repurchase the stock until three or four months before the suit was brought; nor in the meantime had Mittelberg given any notice that he wished to repurchase, and he refused to do so when Spencer made demand. The latter’s claim was assigned for collection to Howe, the plaintiff, who brought suit in his own name for damages on account of Mittelberg’s breach of the contract.
It is settled that there must be a promise to pay (Menefee v. Arnold, 51 Mo. 536) and also settled that an implied promise is sufficient to put the case within the effect of the statute. Reyburn v. Casey, 29 Mo. 129; Moorman v. Sharp, 35 Mo. 283.
In Shelton v. Rodney, 1 Mo. App. (St. L.) 130, a letter acknowledging the receipt of sacks of wheat and reciting sales thereof, with a statement that “account
If we deal with the contract in question according to its plain intention instead of the words used, it is simply a contract by which Mittelberg agrees to repay Spencer the money Spencer had paid him for the stock and to take the stock back on demand. The language, “I agree to buy back the said stock at its first price,” is of the same legal force and effect it would have borne if it had read, ‘ ‘I agree to pay back the cost price of said stock on its return to me.” So if we test the application of the statute of limitations, as appellant claims we should, by asking whether the contract shows on its face a promise to pay or requires evidence aliunde to show a promise (Carr v. Thompson, 67 Mo. 472), the cause of action falls within the ten-year limitation, because the contract carries on its face a promise to pay money.
That the payment was based on a contingency, to-wit, a demand by Spencer, does not alter the case. This argument was met and answered in Martin v. Knapp, 45 Mo. 48, where the action was on an administrator’s bond and the five-year statute was pleaded in bar because, as was argued, the instrument sued on was not a writing for the payment of money or property within the signficance of the ten-year limitation. But the court pointed out in its opinion, that the limitation statute of 1849 was amended in the revision of 1855 by omitting the word “direct” in describing
“The result of these decisions is that if the writing in question contains enough to raise the promise (to pay' money or property) sued on, the ten-year limitation applies to an action for its breach. If the obligation is clearly apparent from the writing, the breach of it may be exhibited by facts outside the writing.”
In Dunning v. Price, 56 Ill. 338, the suit was on a contract to pay part of the judgment as soon as a note given for it should be collected, and the promise was held within the ten-year limitation of a statute substantially like our own.
The foregoing cases warrant the ruling that plaintiff’s right of action on the contract in question was not ■ barred at the time the suit was begun.
3. A point is made by the appellant against the jurisdiction of the justice of the peace, but the justice had jurisdiction, as this is an action on the c.ontract for damages, and not one to compel specific performance.
The judgment is affirmed.