132 Mo. App. 98 | Mo. Ct. App. | 1908
This is an action on an attachment bond executed by L. L. Allen, A. Forsythe and J. F. Stark, three of the defendants. The other two defendants are L. L. L. Allen, and J. Forsythe. Those five men composed a firm styled Allen, Stark & Co. This firm in May 16,1893, sold to W. S. White an ore crusher for which White gave his promissory note of said date for $450 payable in six months, with J. A. White, J. N. Scott and J. W. Shipman, who is the relator in the present action, as sureties. Said note was endorsed on the back by W. H. Smith, at the request of L. L. Allen, some time after its execution and delivery to the payees. When it matured November 15, 1893, L. L. Allen, one of the members of the firm of Allen, Stark & Co. and its active representative in the transactions with de
We will state enough of the pleadings in this case to show the issues joined. Suffice to say as to the petition that it asks damages for three items: $250 for fees of relator’s counsel earned in defense of the attachment action; $88.40 for railroad fare, traveling, lodging and hoarding expenses incurred by relator in coming to Missouri and preparing for the trial of the attachment action, and $114 as the value of the time relator lost in looking after said action. The answer of defendants admitted the execution of the attachment bond and denied the other averments of the petition. It then set up two counterclaims against relator. One of said counterclaims is based on the note of May 15, 1893, less the aforesaid payments, which were alleged in the answer to have been made on said note. The other counterclaim is based on the note of November 15, 1893, on which the same payments are credited. In his replication relator said in defense of the counterclaim on the note of May 15th, that he signed the same as surety for W. S. White, but after the delivery of the note to Allen, Stark & Co. it was altered by said firm having one W. H. Smith sign his name thereto as maker without the knowledge and consent of relator. We held
“Ordinarily nothing but money will satisfy a debt, but a creditor and debtor may agree on some other medium of payment and if, as Allen swore in his deposition, he took the renewal note in payment and satisfaction of the old one and marked it ‘paid’ across its face, the makers of the old note were discharged from all liability thereon. But as relator, in his answer to the counterclaim stated facts inconsistent with the idea of any intention of the maker of the note to deliver it to Allen this instruction was opposed to the issues as made by the pleadings and should not have been given.”
The instruction which this court said should not have been given, was one given for plaintiff which declared if the jury found the note of May 15th was paid by delivering to L. L. Allen, for Allen, Stark & Co. a note of even amount dated November 15, 1893, signed by W. S. White and others, and that said Allen accepted the latter note for Allen, Stark & Co. and was authorized to do so, in lieu of and in payment of said note of May 15th, the verdict should be in favor of relator and against defendants on their counterclaim, to-wit; on the counterclaim based on the note of May 15th. The instruction was condemned because relator, in his answer to the counterclaim, had stated facts inconsist
On the second trial relator had judgment and defendants again appealed, assigning errors based mainly on the rulings of the court in giving and refusing instructions. It seemed necessary to state the facts thus fully to make clear the points raised and decided on the present appeal.
“In determining the facts as to whether J. W. Ship-man changed his residence and became a resident of the Indian Territory you are to .find these facts from all the evidence in the case. If you believe from the evidence that J. W. Shipman changed his residence and absented himself from his usual place of abode so the ordinary process of law could not be served upon him, then you should find for the defendants on their counterclaim; but if you find from the evidence that J. W.
The court refused a peremptory instruction to find for defendants and refused two other instructions requested by them. One of these related to the payment of thirty-eight dollars on May 4, 1896. In substance it told the jury, if they believed said sum was paid on the indebtedness represented by the note of May 15, 1893, then said note was not barred by the Statute of Limitations and they should find for defendants. The next refused instruction advised the jury if they believed relator had departed from and resided out of this State .from about March 1, 1901, to July, 1905, then the Statute of Limitations did not run against the note of M'ay 15th. Further, that if the jury believed Ship-man, about February or March, 1901, moved with his family to the Indian Territory and did not return to Missouri to live until about the said month of July, 1905, and that during said period of time relator Ship-man could not have been served with the ordinary process of law in this State, by leaving a copy of such process with a member of his family over the age of fifteen years, at his usual place of abode in this State, then relator Shipman had, within the meaning of the law, departed from and resided out- of this State during, said time, and it was the duty of the jury to find for the defendants on their counterclaim.
(a) It will be perceived the instruction given for-re! ator on the defense the note was barred, ignored the payment of May 4, 1896. The original counterclaim was filed March 16, 1906, and hence if said payment was made on the note of May 15th, the counterclaim on said note was not barred when filed and would not, have been barred for nearly two months later. But. counsel for relator say all the evidence shows the three partial payments were made on the note of November
(b) It remains to consider the instructions dealing with the departure of relator from the State and his residence in the Indian Territory. The one given for relator is faulty because it omits to advise the jury how ordinary process of law may be served on a defendant under the statute — to-wit: by leaving a copy of the petition and writ at his usual place of abode with a person of his family over fifteen years of age. [R. S. 1899, sec. 570.] It might have been thought by the jury that, as Shipman was in Missouri at various times attending court, these opportunities for service of process sufficed to continue the course of the statute. The instruction was based on the second clause of section 4282 of the statutes, which says if a person who i& a resident of this State when a cause of action accrues against him, shall thereafter depart from and reside out of the State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of the action. This statute has been considered in cases analogous to the one at bar. It is construed in connection with section 570, which provides for service of process by leaving a copy of the petition and writ with a person of the defendant’s family over fifteen years of age, at his usual place of abode. The effect of the decisions is as follows: if, while he is a resident of the State, a cause of action accrues against
The judgment is reversed and the cause remanded.