Beck v. Haas

• Court: Missouri Court of Appeals
• Writing for the Court: THOMPSON, J.
• Citation: Beck v. Haas, 31 Mo. App. 180 (Mo. App. 1888)
• Decision Date: 22 May 1888
• Parties: CHRISTIAN BECK, Respondent, v. HERMAN HAAS, Appellant.

31 Mo.App. 180

CHRISTIAN BECK, Respondent, v. HERMAN HAAS, Appellant.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

Appeal from the Jefferson Circuit Court, HON. JOHN L. THOMAS, Judge.

Affirmed.

WISLIZENUS & KLEINSCHMIDT, for the appellant: (1) Mere payment of money, within ten years, by the debtor to the creditor, does not take a note out of the statute of limitations; the payment, to have such effect, must have been made on the note. Loeffel v. Harris, 11 Mo.App. 135; Phillips v. Mahan, 52 Mo. 197. (2) Upon the death of a married woman the trust, as to any property held simply to her separate use, ceases--the trustee has no further title. Roberts v. Moseley, 51 Mo. 286; Baker v Nall, 59 Mo. 265; Liptrot v. Holmes, 1 Ga. 390; Steacy v. Rice, 27 Pa.St. 81; Comby v McNichols, 19 Ala. 750; Aiken v. Smith, 1 Sneed 304; Smith v. Thompson, 2 Swan. 386; Davis v Rhodes, 39 Miss. 155; Peery v. Carnes, 86 Mo. 656.

THOMAS & HORINE, for the respondent: (1) The payment of money by plaintiff to defendant on his indebtedness, without having given directions at the time of the payments how they should be credited, plaintiff had the right to apply them on the note in suit. Goddard v. Williams, Adm'r, 72 Mo. 131; Carter v. Carter, 44 Mo. 195. (2) Where a note made payable to a party--administrator, guardian, agent, or trustee of another, or sheriff of a certain county, without more--the party named as the payee has the right to collect, sue for or assign the note, the words administrator, guardian, agent, trustee, and sheriff being merely descriptio personae. Powell v. Morrison, 35 Mo. 244; Draper v. Minor, 36 Mo. 290; Bradshaw v. Wills, 38 Mo. 201; Cook's Ex'r v. Holmes, 29 Mo. 61; Nicholay v. Futsche, 40 Mo. 67; Calloway v. Johnson, 51 Mo. 33; Agr. Works v. Heiser, 51 Mo. 128; Jeffries v. McLean, 12 Mo. 538; Smith, Adm'r, v. Monks, 55 Mo. 106; Brooks v. Mastin, 69 Mo. 58; Manufacturing Co. v. Montgomery, 74 Mo. 101; Rittenhouse, Adm'r, v. Ammerman, 64 Mo. 197; Webster v. Snitzer, 15 Mo.App. 346; Lachance v. Loeblin, 15 Mo.App. 460. (3) Upon the death of a married woman the trust does not cease as to any personal property. The legal title remains in the trustee. Slevin v. Brown, 32 Mo. 176.

OPINION

THOMPSON J.

This action is brought to recover on a promissory note for nine hundred dollars, given by the defendant and another to the plaintiff on the nineteenth of October, 1871, and payable one year after date. The note was barred by limitation at the time the action was commenced, unless it was taken out of the statute by reason of certain part payments alleged to have been made by the defendant and endorsed by the plaintiff thereon. In respect of these part payments, the evidence showed that the defendant was indebted to the plaintiff upon this promissory note, upon another promissory note for the sum of three thousand dollars, and also by an open account for refreshments which the defendant had had at the plaintiff's place of entertainment. While the defendant was so indebted, the plaintiff and the defendant both passed into extremely necessitous circumstances. The plaintiff wrote the defendant many dunning letters, not referring to either of the notes or to the open account, and the defendant replied, sending him from time to time little remittances of five, seven, or ten dollars, as he could afford to, two of which were, without the knowledge or request of the defendant, endorsed by the plaintiff upon this note. On June 23, 1877, there was also a credit of fifty dollars on this note, endorsed by the plaintiff, and at the same time a credit of fifty dollars endorsed on the three thousand-dollar note by the plaintiff. The history of this credit, according to the testimony of the plaintiff, which, after the verdict, we are entitled to take as true, was that, at the date when it was made, the defendant had given the plaintiff a note of Anthony & Kuhn for one thousand dollars in general payment, with instructions not to compromise it for less than one hundred dollars; that the plaintiff compromised it for one hundred dollars, and received that amount for it, half of which, fifty dollars, he endorsed on this note, and the remainder on the other note. The testimony of the defendant was to the effect that the small items which from time to time he sent to the plaintiff were not intended as part payments upon the note in suit or any recognition of it, but that he regarded it as barred by limitation and as having ceased to be a liability, and that these items were sent as gifts to relieve the distress of an old friend who had befriended him in former times. The plaintiff, on the other hand, testified that he regarded them as payments.

The substantial question for decision is, whether these were part payments upon the note in suit such as took it out of the statute of limitations. Part payment will take a demand out of the statute of limitations. Rev. Stat., sec. 3250; Bridgeton v. Jones, 34 Mo. 471; Lawrence Co. v. Dunkle, 35 Mo. 395; Callaway County Court v. Craig, 12 Mo. 95; Block v. Dorman, 51 Mo. 31; Vernon County v. Stewart, 64 Mo. 408; Shannon v. Austin, 67 Mo. 485. But the mere endorsement of a credit on a note without the privity of the maker is not evidence of part payment for this purpose. Phillips v. Mahan, 52 Mo. 197; Loewer v. Haug, 20 Mo.App. 163; Goddard v. Williamson, 72 Mo. 131. The same principle has been applied to the endorsement of a credit on an account without the privity of the party who receives the credit. Loeffel v. Hoss, 11 Mo.App. 135. In this case there was a discrepancy between the evidence of the plaintiff and that of the defendant on the question whether these payments were intended as payments on the indebtedness of the defendant to the plaintiff, or whether they were intended as gifts or charitable contributions by the defendant to the plaintiff. This was a question of fact for the trier of the facts ( Minniece v. Jeter, 65 Ala. 222), and it was resolved in this case in favor of the plaintiff by the finding of the court sitting as a jury.

The interesting question remains whether, in case there are several items of indebtedness having different periods of time to run and expiring by limitation at different times and the debtor makes payments without specifying upon which item they are to be applied, the creditor can, by the mere act of applying them to a particular item without the privity of the debtor, take that item out...