120 Mo. App. 462 | Mo. Ct. App. | 1906
This is a suit on a promissory note. The facts are on May 7, 1901, the defendant borrowed from the Bank of Caruthersville $250, for which he executed a note to said bank bearing eight per cent interest. The plaintiff and George Fair signed said note and became joint makers or securities thereon for him. After-wards this plaintiff and his co-surety, Fair, paid off the note at the bank and took up the same, and for value, the bank indorsed and transferred the said note to plaintiff and said Fair. Afterwards the defendant fully paid and reimbursed M'r. Fair for the full amount he had ex-' pended in discharging and taking up one-half of said note and thereupon said Fair, having been fully paid, transferred his interest in the same to the plaintiff and delivered the same to him with the following indorsement thereon: “Received order on D. W. Gible for $50, also Deering Harvester Company’s check for $76, which is understood to be in full for the one-half of this note which was due to me. In consideration of the above payments, I, George Fair, without recourse on me, relinquish all claim or interest in said note, October 23,
At the trial, the defendant admitted the note and that the plaintiff and Mr. Fair discharged the same for him at the hank.
The answer consisted of a counterclaim for work and labor which defendant claims to have performed for plaintiff in Arkansas. The plaintiff introduced the note and proved how he became the owner and holder thereof as above indicated, and having thus made a prima facie case, the defendant assumed the burden on his counterclaim. Whereupon the following material facts were developed.
Plaintiff had contracted to furnish a large amount of saw timber in Arkansas and about four years before, employed this defendant to haul logs from the forest to the river bank at so much per thousand feet; the amount of lumber in said logs to be ascertained by scaling or measuring them on the river bank. It appears the defendant, with several men and teams, worked at this business for plaintiff several months and that there was a running account between them during that time. Defendant testified that he had measured and scaled all of the logs he had hauled and that, after allowing all credits, etc., there was a balance due him from plaintiff on his account, of $300; that he had a book account of the items which he made at the time; that the book had become lost, inasmuch as shortly thereafter the present plaintiff broke up in business and was insolvent for several years. He further testified that he had been wholly unable to induce the plaintiff to accompany him and measure the logs and settle therefor at the time he concluded the work. He admitted having received several hundred dollars in payments from the plaintiff while the work was going on, but insisted that there was a balance of $300 due
The case was tried by the judge without a jury. No declarations of law were asked or given. The court found the issues for the defendant and plaintiff appeals.
From the evidence, it is apparent that there was substantial evidence introduced by defendant to sustain the finding and judgment in his favor by the trial court. In fact, this much is conceded by appellant in his brief, and the only question urged by him in this court for a reversal of the judgment is that, inasmuch as the uncontroverted evidence discloses the contract for hauling the logs whereby defendant claims the plaintiff is indebted to him on the counterclaim was made in Arkansas, to be performed in that State, and that it was fully performed in that State more than three years prior to the filing of the counterclaim herein, therefore the indebtedness alleged in the counterclaim accrued more than three years prior thereto and is barred by the three years statute of limitations of the State of
We are unable to find reversible error in the record. The judgment is therefore affirmed.
