Monroe v. Herrington
| Decision Date | 21 February 1905 |
| Citation | 85 S.W. 1002,110 Mo.App. 509 |
| Parties | MONROE, Respondent, v. HERRINGTON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.
REVERSED.
Judgment reversed.
Sam Byrns and James F. Green for appellant.
(1) No payment having been made by defendant Herrington on the note in suit within ten years prior to the date of the institution of plaintiff's suit, there can be no recovery. R. S 1899, sec. 4294; Maddox v. Duncan, 143 Mo. 613, 45 S.W. 688; Regan v. Willams, 88 Mo.App. 577; Corbyn v. Brockmeyer, 84 Mo.App. 653. (2) Nor can defendant Herrington be held liable upon an acknowledgment of the debt. Such acknowledgment to remove the bar of the statute must be in writing and contain an unqualified admission of a present subsisting debt. Wells v Hargrave, 117 Mo. 568, 23 S.W. 885; Kirkbride v Gash, 34 Mo.App. 260; Chidsey v. Powell, 91 Mo. 627, 4 S.W. 446; Chambers v. Ruby, 47 Mo. 99; Carr v. Hurlburt, 41 Mo. 267.
L. F. Dinning and E. J. Bean for respondent.
(1) The defendant is estopped from pleading the Statute of Limitations in bar of plaintiff's claim on the note. 19 Am. and Eng. Enc. Law (N. E.), p. 288, sec. 16; Dry Goods Co. v. Goss, 65 Mo.App. 55; Railroad v. Cooms, 71 Mo.App. 299; Bridges v. Stevens, 132 Mo. 538, 34 S.W. 555; Holman v. Railroad, 62 L. R. A. 397; Derrick v. Ins. Co., 74 Ill. 404; Newton v. Carson, 5 S.W. 475. (2) Estoppel in pais may rise in action at law as well as in equity and the fact that it does arise and become an issue in a proceeding before a justice does not defeat his jurisdiction. Pittman v. Mining Co., 78 Mo.App. 438.
Action on the following promissory note:
"(Signed) MARY A. CRAFT," and eight other names.
The note was signed on its face by Mary A. Craft and eight other makers. It was indorsed on the back as follows:
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, 45 S.W. 688.]
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, appellant would pay the balance then due on the note.
The letter reads as follows:
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:
That writing was held by both the circuit court and the Supreme Court to be an insufficient acknowledgment of or promise 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. 264, 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. 256.] 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 to pay whatever remained due after respondent had exhausted his remedy against the Stelbrink estate, the respondent refrained from suing for more than ten years subsequent to appellant's indorsement. In view of these facts it is asserted that appellant is estopped to interpose the Statute of Limitations as a defense. In passing on this proposition it is important to ascertain just what the testimony to support it is. Herrington testified that he never considered the note his debt; but as he had assigned it to Monroe, was interested in seeing that the latter was paid and, therefore, informed him of a certain asset of the Stelbrink estate which the administratrix had failed to inventory. The asset was a brewery bond for $ 1,000. Munroe swore Herrington told him to get what he could out of Stelbrink's estate and he (Herrington) would pay the balance, at the same time informing him of the brewery bond which, if it could be reached, would suffice to pay the note. This promise by Herrington to pay any balance left when Stelbrink's estate was settled was given in 1897, and less than ten years after the date of Herrington's indorsement. Bean testified that in various conversations about the note while he was endeavoring to collect it, Herrington asked him not to sue until the Stelbrink estate was settled--to make what he could out of that estate saying he (Herrington) would pay the balance. Bean also testified there was a tract of land belonging to the Stelbrink estate which was to be sold by the administratrix, and Herrington thought he could make enough by buying the land at the sale to reimburse him for what he might have to pay on the note. The sale occurred May 14, 1900, and the estate must have been settled later; consequently when the settlement occurred, ten years had passed since Herrington indorsed the note. In none of the conversations was the Statute of Limitations mentioned or the danger of the note being outlawed. Neither is it contended that the appellant agreed to waive the defense of the statute if the respondent would forbear suing. Making the Statute of Limitations part of the subject-matter of their conversations or agreement with reference to the note, was never thought of by either party. The most favorable view of...
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