Moorman v. Sharp

35 Mo. 283 | Mo. | 1864

Bat, Judge,

delivered the opinion of the court.

This was a suit upon an instrument of writing in the words and figures' following: “ Received, October 23, A. D. 1852, from Edwin W. Moorman, executor of Wiltshire L, Sharp, deceased, three hundred and ten dollars, to pay for the negro boy Perry, which I have this day bought from C. B. Wray and wife, and which amount I promise to account to the said Moorman at the final settlement of my late husband’s estate. Paulina Sharp, widow of W. L. Sharp, dec’d. By W. B. Oglesby.”

The answer sets up the statute -of limitations, alleging that the action did not accrue within five years before the commencement of the suit, and upon the trial the defendant asked the court to instruct the jury, that if the action was not brought within five years after the final settlement of Sharp’s estate, they must find for defendant. The court refused to give the instruction, and such refusal is the alleged ground of error.

The only question in the case is, whether' the instrument here sued on is a writing for the payment of money within the meaning of the first clause of the second section of the second article of the limitation act of 1855. (2 R. C. 1855, p. 1047.) If it is, then the time of limitation is ten years and not five, and the instruction was properly refused. We think this point was well settled by this court in Reyburn v. Casey, 29 Mo. 129. In that case, the instrument sued on read as follows: “ Received of H. 'Doane, for Samuel A. Reyburn, one hundred and eighty dollars. Potosi, November 16,1850. (Signed,) J. H. Casey.”

The limitation act then in force also provided that an action upon any writing, whether sealed or unsealed, for the payment of money or property, could only be commenced within ten years after the cause of action occurred, and the court held “ that the language of the statute 'was broad enough to embrace all kinds of written instruments, without regard to their mere form or phraseology, which imply a promise or agreement to pay money, and is not restricted to such as have the requisites of promissory notes, or to such instruments as contain an express promise or agreement upon their face to pay.”

If the instrument sued on in the case of Reyburn v. Casey was a writing for the payment of money (as was held by this court) and not subject to the limitation of five years, there is certainly more reason for holding the same doctrine with respect to the instrument of writing which is the foundation of this suit.

The other judges concurring, the judgment will be affirmed.