Arthur L. Hardin Associates v. Jennings Sewer Dist, Etc.

• Decision Date: 04 January 1944
• Docket Number: No. 26449.,26449.
• Citation: Arthur L. Hardin Associates v. Jennings Sewer Dist, Etc., 176 S.W.2d 652 (Mo. App. 1944)
• Parties: ARTHUR L. HARDIN ASSOCIATES v. JENNINGS SEWER DIST. OF ST. LOUIS COUNTY et al.
• Court: Missouri Court of Appeals

176 S.W.2d 652

ARTHUR L. HARDIN ASSOCIATES v. JENNINGS SEWER DIST. OF ST. LOUIS COUNTY et al.

No. 26449.

St. Louis Court of Appeals. Missouri.

January 4, 1944.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Action by Arthur L. Hardin Associates, assignee of W. W. Horner, against Jennings Sewer District of St. Louis County, Missouri, and Walter R. Mayne, liquidator of Jennings Sewer District of St. Louis County, Missouri, to recover balance alleged to be due for engineering services. Judgment for defendants, and plaintiff appeals.

Affirmed.

Owen G. Jackson, of St. Louis, for appellant.

T. Douglas Moore, of Clayton (Fordyce, White, Mayne, Williams & Hartman, of St. Louis, of counsel), for respondents.

BENNICK, Commissioner.

This is an action by the assignee of one W. W. Horner to recover the balance of $1,200 alleged to be due for engineering services rendered by Horner under a written contract with Jennings Sewer District of St. Louis County. The defendants are the Sewer District and Walter R. Mayne, its present liquidator, who was appointed to his position under the provisions of Section 12682, R.S.Mo.1939, Mo.R.S.A., § 12682. Defendants demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action against them for the reason that the debt alleged in the petition was barred by the statute of limitations. The court sustained the demurrer; and upon plaintiff's refusal to plead further, entered judgment in favor of defendants, from which plaintiff's appeal to this court has been taken in the usual course.

It is settled law in this state that the statute of limitations can be invoked by demurrer, if the petition, on its face, discloses that the action is barred, and nothing is pleaded by way of exception so as to relieve against the bar. Burrus v. Cook, 215 Mo. 496, 114 S.W. 1065; Garth v. Motter, 248 Mo. 477, 154 S.W. 733; Steinbruegge v. Prudential Ins. Co. of America, 196 Mo.App. 194, 190 S.W. 1018. As a matter of fact, the only question in this case is whether plaintiff may be said to have pleaded such an exception, since there is no denial by plaintiff that save for an exception, the bar of the statute would otherwise appear.

The petition alleged that on January 23, 1929, the Sewer District entered into the written contract with Horner; that he performed all the services called for by the contract; and that there became due him for his services the sum of $3,750, of which $2,550 had been paid, leaving a balance due him of $1,200.

It was then alleged that on May 4, 1931, Horner had made demand upon the Sewer District for payment of his claim, but that payment had been refused; and that thereafter, the plaintiff herein, as assignee of the claim, had made repeated but unsuccessful demands for payment upon the liquidator, in the course of which Kenneth Teasdale, on December 23, 1937, as attorney and acting for William H. Tegethoff, the then liquidator of the district, had acknowledged the validity of the claim in writing, and had promised to pay the same in a certain letter, the material paragraph of which was as follows : "We have completed our investigation of these claims, and with regard to the merits of the claims themselves, there is little question of their validity. If Mr. Hardin will execute the enclosed written demand for payment from the liquidator, we will recommend that these claims be recognized as of the date when the demand is received, and that they share with the other recognized claims in all future payments."

Plaintiff concluded its petition with the allegation that it had executed the demand for payment as requested in Teasdale's letter, but that no payment had been made; and accordingly prayed judgment against defendants for the sum of $1,200, with interest from May 4, 1931, the date of the original demand.

What plaintiff of course counts upon as having served to avoid the bar of the statute is Teasdale's letter as set out in the body of the petition.

Plaintiff argues that inasmuch as such letter was written before the debt was barred, it should be regarded as the acknowledgment of an existing obligation, accompanied by an express promise to pay the same; and that...