169 Mo. App. 432 | Mo. Ct. App. | 1913
Suit against the estate of Andrew S. Miller, deceased, on a note for $1258.25 dated February 23, 1892, due one day after date, payable to appellant with an alleged credit thereon of $25, March 8, 1910. The note was duly allowed by the probate court from which an appeal to the circuit court was taken by a dang’hter of the deceased, one of his heirs and creditors. In the latter forum a jury was waived and the case tried by the court.
Claimant and deceased were brothers. The genuineness of the note was not disputed. The signature was duly proved. The defense was limitations. On its face the note was barred but on the back was the following indorsement: “Received on the within note twenty-five (25) dollars, Mar. 8, 1910.”
The evidence offered by appellant in support of this alleged indorsement consisted of testimony concerning declarations made by the deceased showing an intention on his part to pay appellant, and also evidence of the circumstances under which appellant received the $25 from the decedent. A sister of deceased testified that about four years or less before he died, she asked decedent to pay her husband the money, 'or some of the money, owing to him, and decedent replied that if he ever got any money he was going to pay his brother Jesse; since they could do without it easier than Jesse could. About a year and a half before he died, decedent told a neighbor, William Schunaman, that he owed Jesse considerable money and ought to pay it but added, “I ain’t just got it to
E. C. Littlefield, an attorney who had transacted much of decedent’s legal business during his lifetime, testified that decedent spoke to him about his indebtedness, and on several occasions said that he wanted to pay Ms brother if he was ever in a position to do so; that he wanted to pa3r him; that he felt more like paying Mm than some of his neighbors; some of his other indebtedness he .didn’t want to pay at all. Witness • further testified that in January or February, 1910, within two or three months of decedent’s death, decedent told him that he thought he would be able to pay some on his indebtedness before a great while, and either at that or at another time decedent asked the witness what effect a pa3unent would have on a debt that was barred by the Statute of Limitations, and the witness told him that it would revive it.
It was further shown in evidence that decedent on the 3rd of March, 1910, went to the bank at Knob Noster and signed a check on Ms account therein for $25 payable to “Miller Draft or bearer,” and with it procured a draft payable to the order of appellant for $25. This draft was sent to appellant who indorsed and cashed the same, and it was returned to the bank at Knob Noster in the usual course of business paid and canceled. It seems that appellant held .two other notes against deceased besides the one credited with the $25 and sued on. All of the notes, however, were barred at the time the $25 was paid. No evidence was offered on the part of respondent.
The trial court refused declarations- of law numbered 1 and 2 asked b\T appellant, the first of which declared that where one person is indebted to another and the debtor sends money to the creditor by check or-
For the defendant the court gave a declaration that before plaintiff can recover it must be shown that defendant paid plaintiff $25 at the time shown in evidence, and that the same was intended as a payment on the note in question, and was made as an appropriated payment theron, but the mere fact that decedent' on the 3rd day of March, 1910, sent to plaintiff a draft for $25 by mail is not conclusive that the same was made as such payment. To this appellant objected, as also to the refusal of the declarations asked by him.
The trial court rendered judgment for respondent and plaintiff appealed. The evidence was not contradicted, and, as the record shows the judgment was not based upon a lack of belief in the testimony, the question presented to the trial court was purely a question of law, namely, does the" sending of the $25, under the above state of facts, constitute a payment on said note by the deceased maker sufficient to
In order to reach a correct conclusion herein it should be borne in mind that our Staute of Limitations does not extinguish a debt, but simply withholds or prevents the remedy. The wording of our statute is to this effect. [R. S. Mo. 1909, secs. 1887, 1888; see also Cowan v. Mueller, 176 Mo. 192, l. c. 198; Cytron v. Transit Co., 205 Mo. l. c. 699.] Jn other words, it is a statute of repose merely. It does not annihilate the debt but only prevents it from being enforced against the debtor. This view of the statute is important not only in determining the admissibility of the declarations of deceased, but also in passing upon the right of the appellant to apply the payment to the particular note sued on.
Objection was made by respondent to the testimony concerning decedent’s declarations, and he insists here that they cannot be considered because they were not made to or in the presence of appellant, nor made at the time the $25 was paid, and did not create a new promise or obligation to pay said indebtedness or any part of it. The testimony, however, was not for the purpose of proving the indebtedness, nor to show that a payment of money actually passed from deceased to appellant. It was only to show the intention deceased had when he obtained a draft and sent it to his brother, namely, his intention to make a payment upon his indebtedness, and that too with full knowledge that its effect would be to revive the debt. It was offered to characterize and explain an act thoroughly established by other evidence. Such being the case, it was clearly admissible.
So that, under the facts, herein, we are dealing with a case in- which the debtor not only made a general payment to his creditor, but did so desiring that his indebtedness to his creditor should be paid, and knowing that, if payment was made, the effect would be to
When deceased sent the $25 to, and the same was received by, appellant, the law presumes it was in payment of a debt and not a gift' or loan. [Bunting v. Allen, 18 N. J. Law, 299; Headley v. Reed, 2 Cal. 322; Poncher v. Scott, 98 N. Y. 424.] And a payment on a note, after the bar of the statute has become complete, will revive the cause of action upon the whole debt. [R. S. 1909, secs. 1909-10-11; Shannon v. Austin, 67 Mo. l. c. 486-7.] Of course if a payment is made under circumstances or with facts accompanying it which forbid and contradict the implication usually arising from such part payment, then it does not -revive the whole debt. But from the mere fact of payment of a part of the debt the law presumes an acknowledgment or new promise. If such partial payment is made without intending it should operate as an acknowledgment of the residue, such lack of intent must be evidenced by some act of the payor and should be made to appear by him. The holder makes a prima facie case by merely showing a part payment on the debt without going further. [Bender v. Markle, 37 Mo. App. l. c. 248.]
But respondent contends in substance that, in the case at bar, there is nothing to show that deceased intended to make a payment-upon this particular note or upon any indebtedness; that before the note can be taken out of the operation of the statute it must appear that the deceased not only made a payment to his brother, but that he made it as a payment on this note and intended and authorized the credit to be placed thereon. With regard to this last, the placing of the credit on the note, it may be observed that it is the fact of the partial payment of the note, and not the formal crediting of such payment on the back of it, which revives the debt. [Elsea v. Pryor, 87 Mo. App. 157.] As to the other part of the contention,
Although the Wilden case was certified to the Supreme Court as being in conflict with the Beck case in the 31st Appeal, the latter tribunal .did not consider the case (178 Mo. 732). But, in a case between the same parties (Beck v. Haas, 111 Mo. l. c. 271), the Supreme Court says the rule in this State allows the creditor to appropriate the payment in the manner most to his own interest when the debtor himself waives the right, provided the application he makes does not operate inequitably to the debtor, and then remarks that “if these payments had resulted in reviving debts already barred its effect might have been different, though it is difficult to see that any equities of the debtor are affected in either case.” And so in this case, as all of deceased’s indebtedness to appellant was barred and deceased knew this and yet wanted it paid and knew the effect of a partial payment, no equities of the debtor could be affected by appellant crediting the payment on any particular note more than another. Hence, in the absence of directions as to which barred note he should credit the pay
Many other cases are cited as being in opposition to the view we have taken, but a careful examination of most of them discloses that they are not applicable to the facts of this case, or are from other jurisdictions in which the statute requires more than a mere payment by the debtor to revive the whole debt.
In view of the above it follows that the judgment should be reversed and remanded with directions to enter judgment for the plaintiff for the amount due on said note with interest, and certify same to the probate court for allowance and classification against the estate of the decedent. So ordered.