110 Mo. App. 509 | Mo. Ct. App. | 1905
— Action on tbe following promissory note:
“$250.00 Hillsboro, Mo., May 4th, 1889.
“One (1) year after date we, or either of us, promise to pay to Millard P. Herrington, or order, tbe sum of two hundred and fifty dollars ($250) for value received, with interest from date at tbe rate of .ten (10) per cent per annum, and if interest be not paid annually to become as principal and bear tbe same rate of interest.
“(Signed) Mary A. Craft,” and eight other names.
“J. H. Morse,
“Henry Stelbrink,
“M. F. Herrington.
“I hereby waive demand, notice and protest.
“M. F. Herrington.
“Payments indorsed as follows:
“$112.45, paid 10-29-92 “$104.16, paid 12-17-97 “$ 34.53, paid 5-30-1900.”
The first indorsement was by Morse and Stelbrink to Herrington, who held it for about eight months and in May, 1889, indorsed it to the respondent who had purchased it from him. Though the names of Morse and Stelbrink appear on the back of the instrument, we understand, they were joint makers. The evidence is rather obscure regarding the origin of the note; but suggests that Herrington advanced the money called for by it in order to prevent the sale of some property in which Stelbrink, Morse and the other makers were interested. The defense is the Statute of Limitations.
It is conceded that the payments credited on the note were not made by Herrington, but by one or more of the joint makers; therefore, as the cause of action against Herrington is .based on the independent contract created by his indorsement, to which the makers were not parties, the payments did not defer the running of the statute in his favor from the date of his indorsement. [Maddox v. Duncan, 143 Mo. 613.]
This action was instituted April 9, 1901, more than ten years after the date of Herrington’s indorsement. To overcome the defense of the Statute of Limitations, the repondent relies on a letter written by Herrington to respondent’s attorney, and said to acknowledge the debt, and on an oral promise by him that if suit was not brought until the estate of Henry Stelbrink was settled,
The letter reads as follows:
“De Soto, Mo., 3-21-1901.
“Mr. E. Bean,
“Hillsboro, Mo.
“Dear Sir: When yon come down bring that note and all of the credits, or send them to me, as I want to have it figured. The way I got it from you was this: May 4th, ’89, note $250 at ten per cent. Paid October 29', ’92, $112.45; February 20, ’97, $260.41; December 17, ’97, $104.16; May 5, 1901, $40.00'.
“If I have the dates and amount right except the third payment. I don’t think I got that right.
“Yours respectfully,
“M. F. Hekrington.”
That letter contains no direct and unequivocal acknowledgment of the defendant’s liability on the note and no promise, either express or implied, to pay it. If it had acknowledged the note as a subsisting debt against the appellant, it might have been sufficient to postpone the running of the statute without an expression of willingness or intention to pay. [Chidsey v. Powell, 91 Mo. 622, 4 S. W. 446.] The letter relates to the note, but nothing in it can be construed as an admission on the part of the appellant that it was a subsisting debt of his. The language used by the writer shows he was concerned about 'the note; but we understand that a writing must unequivocally acknowledge the existence of a debt or contain a promise to pay, in order to suspend the statute. As to the point under consideration, this case is like Wells v. Hargrave, 117 Mo. 563, 23 S. W. 885. The debtor in that case wrote a letter to his creditor which contained the following reference to the indebtedness:
“Will make you a statement of what I got of you in land purchases. The amount was two hundred and ninety acres and seventy-six hundredths (298.76) acres*513 the price was five dollars per acre or ($1,548.05) fifteen hundred and forty-eight dollars and five cents, all to be due in January, 1869. This statement I make from recollection and pretty sure correct, but I hold the original papers, and cancelled them all in the Texas trade and trip. My intentions are true and faithful, but my abil-' ities are rather cramped now until can sell or make some money otherwise.”
That writing was held by both the circuit court and the Supreme Court to be an insufficient acknowledgment of or promse to pay the notes sued on, to take the case out of the statute. The Supreme Court said that to accomplish that purpose the acknowledgment must be in terms so distinct and unqualified that a promise to pay upon request, or at some fixed time, may reasonably be inferred from it; must be clear and explicit, not incumbered by any conditions; that there need not be an express promise to pay provided a clear, distinct and unequivocal acknowledgment of the debt is shown. In Carr v. Hurlburt, 41 Mo. 267, it was said that to take a case out of the statute there should be an express promise to pay or an acknowledgment of an actual, subsisting debt from which the law would imply a promise. In Chambers v. Rubey, 47 Mo. 99, it was held the acknowledgment should contain an unqualified and direct admission of a present and subsisting debt. [See, too, Kirkbride v. Gash, 34 Mo. App. 258.] We think it is plain the defendant’s letter did not interfere with the running of the Statute of Limitations against his obligation as indorser of the note.
According to the testimony of the respondent and Mr. Bean, his attorney for the collection of the note, the appellant was anxious that as much money as possible should be realized out of the estate of Henry Stelbrink, who had died in the meantime. They say that, at appellant’s request, and relying on his promise tol pay whatever remained due after respondent had ex|
The judgment is reversed.