*1 CASES DETERMINED
BY THE ST. KANSAS CITY AND LOUIS, SPRINGFIELD Appeals Courts AT THE OCTOBER TERM, 1921.
(Continued Vol. 210.) from MICHAEL LEHNER, Appellant, v. ROTH JOHN
MARI ROTH, Respondents. St. Appeals. Louis Opinion Court of February 8, Filed 1921. LIMITATIONS, 1. Writing Payment STATUTE OF: for the- of Mon- ey: Pay. Promise "upon any writing pay- The words money” 1888, 1909, (sec. Revised Statutes 1919), fixing period R. S. of limitations within which writing on such brought, must be mean that promise, implied, contain a either .the Requirements 2. Promissory NOTES: Notes: BILLS.AND Uncon- Pay Money: Negotiable ditional Promise to Sum Certain in Instru- ment Act. The rule that a note must contain an unconditional changed by a sum certain in was not Negotiable Instrument Act. -: -: -: -: Note 3. Need Not Contain Word Indicating Paly Terms “Promise:” Intention to Sufficient. Under Negotiable (section 9981,* Instrument Act Revised Statutes R. sec. note need not contain the word “promise” but other terms which are sufficient pay. clearly indicate an intention to LIMITATIONS, Writing OF: STATUTE Instrument 4. Money: Applies. following Payment Five Year M. A.] APPEAL MISSOURI REPORTS, Bight Mo., September Louis, “$834. instrument: hun- thirty-four dollars, pay Mike Lehner dred and the order thirty-four eight received at dollars value hundred *2 cent, per per six annum.
rate of
Rotii,
John
Mari Roth.”
Hoeer.
Due: John
plaintiff
of
sum
contain
does not
implication
or
writ-
therein
itself,
fall
ing
does
within
held
therefore
not
and
1909, the
Statutes
ten
Revised
year
the five
thereon is
year
an action
Limitations.
J.,
Reynolds,
dissents.
P.
Supreme
case
affirmed
above
Note. —The
Rbeouter's
91.W.
243
See
Court.
County.—
Louis
the Circuit
Appeal from
Judge.
Wurdeman,
A.
Hon. Gustave
n
Certified
Affirmed
appellant.
S Grant
Grant
sustaining
defendant’s de-
(1)
court erred
plaintiff’s
and third counts
second
first,
murrer
prom-
(2)
petition.
instrument sued on a
amended
Shirley
issory
Mo.
Hoffman,
42;
7
v.
note.
v.
569;
Peirson Cun-
Ubsdell &
West, Mo.
v.
7
McG-owen
ningham,
31
et
Mo.
Chandler,
22 Mo.
al. v.
124;
(3)
App. 701.
Kuechenmiester,
Loclier
120 Mo.
28;
v.
“upon any
is in
bar
The action
the case at
whether
unsealed,
sealed
property,”
money the first
subdivision of section
Revised
Mis-
Statutes
Company,
App.
souri 1909. Ball
141
v. Cotton Press
Mo.
Wyman
App.
Rey-
26;
130;
Shelton et al.
1 al.,
v.
et
Mo.
Casey,
Reyburn Casey,
burn v.
Mo.
129;
Mo.
v.
252;
Bridges
Stephens,
Mittelberg,
v.
Julius upon not the demurrer is (1) The action because the record discloses review court for before this exception thereto and aban- or saved taken by going the fourth count. to trial said counts doned in- (2) at bar is barred of action because The cause strument sued imply parol promise without the aid of
or words that
than the
has
evidence.
If
other evidence
period
be resorted to to make out a case
limita-
years.
tion is five
Arnold,
Menefee
536Cam
Thompson,
Quattrochi
Achhundred u vier und dreisig°fw*'8«§,»e- (cid:127)itr to the order of Mike Lehuer Achhundred vi-er dreisig und dollars value received «ij^mt'ojoot ífei»fr"of©farfaonia fucm makMu&fratthe rate U% "eigfcfr'pGi' cci'iti per annum. John Roth
Marx Roth. APPEAL 211 MISSOURI REPORTS, On , Due: Hoeer. Jahn these words instrument are the hack dol. in 19 Mai 1906-60
Bezeilt English translation of reads: September Louis, Mo., 1,1905. $834.00 thirty-four Eight to the dollars, hundred eight thirty-four hundred and Mike Lehner per at rate of cent received six for value dollars per annum. Roth,
John Mari Roth. Due: Hofer. John the back:
Endorsed on May, 19th of “Paid $60.00.” petition separate four all based was counts, seeking recovery the same instrument but theories. The court different sustained demur- below and third rers second the reason first, counts, appeared upon that it the face thereof that the cause alleged therein the Statute of Limitations. juryA waived, cause was submitted to the upon the fourth is in count, which the usual form petition upon note. general The defendants’ answer was a denial and plea both the five and Statute of Limita- tions.
The trial court rendered for defendants’ holding five-year that the instrument sued on was barred (section
statute 1889, Revised Statutes, *4 provisions and did not come within the of the first sub- ten-year division of section the 1888, statute, the action upon not writing payment money for the of property. appeals. or Plaintiff ^ may.be It noted February that the suit was filed on 28, 1916, years more than ten after the date the in- of quite years strument, but not ten from the date of the alleged payment on the back May. of the noté made on .19, 1906. question presented sole appeal the is
OCTOBER TERM, ap- ten-year of Limitations Statute or the five whether instrument sued the pending If action.' plies to the money payment of writing the be a said to he can not meaning is the 1888, same that statute. years of under for ten the words of uniformly courts, construed As payment “upon any writing mon of section ey” promise either must contain mean that is implied payment clear express of It or promise suit contains that the instrument Viewing part pay on of the defendants. it be such it four can said that from corners language implied used resort without be from the can ing governs has evidence rule which aliunde? “In thus: been any writing bring ‘action money property,’ appear in or the statement the cause of or sued for action, paid given by language promised is only and that such arise proof nothing of extrinsic That else meets the facts. requirements uniformly been held has cases). (citing under whenever has been review” Company [Parker-Washington
l. c. 183 S. W. 1041.]
In the case Curtis v. 201 Mo. l. c. 230, 100 17, it said: is “Defendant also contends that five-year action falls cause within the of Limi argument tations and is therefore barred. The is beyond when evidence the written document must be re sorted in order make case it not an out the upon writing payment money ‘a . . . .for the property’ section Revised (which limitation), Statutes is supporting argument, several cases are cited as among them Menefee v. Arnold, Joseph, 399, and others. But misconception say they only cases,- those mean to
6 211.MISSOURI APPEAL REPORTS, . agreement promise or to on which where that not found action based implication but the cause of in the it does instrument, collateral to the out' of facts arises provision of the Stat- fall within the section Limitations.” ute of
In on be sued could said event instrument promissory be then it fall course, note, would of the statute. "While subsequent in suit instrument executed time negotiable 1909) (Chap. R. act S. instrument (June nothing went into effect there is any changes way which in law the rule existed be- passage, fore its to the effect that note contain. an unconditional a sum certain in negotiable (section 9981) Under the instrument act “promise,” instrument need not contain the but word clearly other terms which are sufficient pay. indicate an intention to A number of cases in this State have held that mere bills due are *6 pay, that promise an instru- imply and held to a to
words dollars, for thousand for one “Good in the form: ment Jockey to surrendered Club Stock Kinloch 10 shares of by Kessler promis- undersigned said stock J. owner of the the a Lucas,” J. D. liable. am for which I and incident sory to the attributes such as entitled note, and n tosuch obligations. down rules laid Gauging in suit the the say foregoing that the same can we authorities the acknowledg promissory it an that contains note a and plaintiff, to of the the of an indebtedness defendants ment promise pay? imply a to We the law would from which inspection does not of that instrument re think not. An acknowledged they that were veal that the defendants say plaintiff any nor it that sum, to the indebted plain they.promise they to the order of will contrary, “promise” tiff sum. On the word blank note used is stricken form of a appears paper to with order start to out, and addressed some one else to of the defendants regard plaintiff, and résembles signature exchange. And below the the maker bill ‘£ ’’ Due: John Hofer. The instru are found the words: standing and extrinsic evidence alone without is so uncertain that could not be said indefinite acknowledgment even an of an indebtedness contains plaintiff. Plaintiff’s from the defendants counsel real evidence to such fact and offered the. effect that ized gave paper the defendants price purchase certain that John Hofer signed signature. as a the same witness The instrument does the sum of therein in -implication itself. Such only showing could arise reason of the state of facts collateral to the instrument. Such could not be to fall case said 211 MISSOURI APPEAL REPORTS, Lelmer .provisions and it is necessarily five-year by the therefore l. [Menefee Arnold, 539; 51 Mo. Carr Limitations. c. Thompson, 476; l. c. Curtis Parker-Washington Company l. c. S. W. 183 S. Ball W. v. Cotton Company, Press S. W. Babler (Springfield Appeals), v. Rhea 202 S. 604.] judgment , The Commissioner recommends be affirmed. foregoing opinion
PER CURIAM: The Biggs, adopted opinion isC., as the accordingly County circuit St.'Louis Reynolds, affirmed. Allen and Becker, JJ., concur; J.,P. *7 request Supreme dissents, and at his cause is certified to Court. myself (Dissenting). P. REYNOLDS, J. find un- —I agree opinion
able to Biggs, ap- of Commissioner proved by majority of our court. It does not dis- tinctly appear petition gather when the filed; but we from the that it was filed and record the action com- years prior May menced think within ten 19, 1906. I sued on either a note, meaning of our statute, and, as held Supreme Court in Shirley Hoffman, 7 42, and McGowen West, the action is upon writing within the first subdivision 1888, Revised Statutes 1909, and falls decision Supreme of our Reyburn Casey, ; Mo. 129 Bridges same case Stephens, 132 Mo. Knisely 34 555;W. Leathe, 341, 166 S. W. 257, and other cases. I therefore think the the circuit court should be reversed and the cause re- deeming opinion manded, and the majority court in conflict with the cases have cited, I I ask that this cause be certified to the notes though acknowledged even law expressed indebtedness is [McGowen words used. Shirley, West, v. 7 Mo. v. Mo. Locher Chandler, Kuechenmiester, Reyburn 92.] And in the case of Casey, 129, was held that an re citing Reyburn that H. Doane had received for A. Samuel signed by $180, Casey, Potosi, Nov. 16, 1850, and J. H. Reyburn, was held to a note which in whose money by Casey, favor the was received could maintain acknowledgment action, asserted that the part Casey having payable received Beyburn promise implication raised a of law to to'Reyburn. pay the same This Clayes, case Kessler v. App. 88, 125 S. W. exhaustively reviewed the au- question thorities on the requirements as to the 1922.. TERM, OCTOBER Both. Leaner necessary especially in the matter promissory note,