Beck v. Haas
| Decision Date | 01 July 1892 |
| Parties | Beck v. Haas, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. -- Hon. John L. Thomas, Judge.
Affirmed.
Wislizenus & Kleinschmidt for appellant
Benj. J. Klene for respondent.
(1) There was evidence tending to prove that the payments were made on account of an indebtedness then due Beck from Haas and the finding of the jury is conclusive. Ramsey v Barnes, 12 N.Y.S. 627; Chidsley v. Powell, 91 Mo. 622; Beck v. Haas, 31 Mo.App. 180. (2) Plaintiff had a right to apply payments, in the absence of defendant's direction, in such manner as he pleased, and to apply a portion of each payment to different debts. Shortridge v. Pardee, 2 Mo.App. 363; Middleton v. Frame, 21 Mo.App. 412; Waterman v. Younger, 49 Mo. 413; McCune v. Belt, 47 Mo. 174. (3) The court's instruction presented the case fully to the jury and more favorably to defendant than the law justifies. Ackley v. Railroad, 30 Mo.App. 657; Raysdon v. Trumbo, 52 Mo. 35; Bank v. Murdock, 62 Mo. 70; Skyles v. Bollman, 85 Mo. 35. (4) There never was any trust relation between Mr. and Mrs. Beck with respect to the note in suit. If there was plaintiff had a right, jure mariti, to terminate it, and did terminate it by the exercise of his common-law right to take his wife's choses in action. Bettes v. Magoon, 85 Mo. 580; Clark v. Clark, 86 Mo. 116; Botts v. Gooch, 97 Mo. 91; Holmes v. Holmes, 4 Barb. 295; Williams v. Courtney, 77 Mo. 228. But, if a trust in this note was intended in favor of Mrs. Beck, plaintiff's common-law right attached before the passage of the law of 1875, and could not be disturbed by the passage of that law. Laws, 1875, p. 61; United States Constitution, art. 1, sec. 10; Missouri Constitution, art. 2, sec. 15; Railroad v. St. Louis, 66 Mo. 228; Williams v. Courtney, 77 Mo. 588.
Suit was commenced August 15, 1889, upon a note for $ 3,000, dated April 1, 1866, made by defendant and one John Schreiber, and payable to Christian Beck, trustee of Anna Eliza Beck, one year after date. Upon the note credits were indorsed as follows: April 1, 1867, interest $ 300; April 1, 1868, interest $ 300; March 6, 1873, $ 50; June 28, 1877, $ 50; November 11, 1885, $ 5.
The answer admitted the execution of the note, denied the payments of March 6, 1873, June 28, 1877, and November 11, 1885; and set up the statute of limitations in bar. The answer further charged that Anna Eliza Beck was dead, and the note being payable to plaintiff as her trustee belonged solely to her estate, and suit thereon could not be maintained in the name of the trustee.
The reply was a general denial.
The evidence upon the trial showed that Anna Eliza Beck was the wife of Christian Beck; that she died in 1881, and no administration was ever taken out on her estate. The evidence further showed that $ 300 interest was paid on the note April 1, 1867, and April 1, 1868, and the payments indorsed as such credits thereon. In 1872 defendant and Schreiber gave plaintiff their note for $ 900, being interest for the years 1869, 1870 and 1871, on the $ 3,000 note in suit. At the same time Haas gave a second deed of trust to secure this $ 3,000 note upon certain real estate in Carondelet, subject to a prior deed of trust for $ 3,000, the property having cost Mr. Haas, as he testifies, over $ 6,000. In 1872 Haas & Schreiber failed. In 1873 Beck foreclosed the deed of trust above mentioned, buying the property subject to the first deed of trust for $ 50, which he credited on the $ 3,000 note.
The evidence tended to prove that in 1877 defendant gave plaintiff a note on a third person for $ 1,000, instructing him not to take less than $ 100 for it. He received that sum and credited $ 50 on the note in suit, June 28, 1877, and $ 50 on the $ 900 note. Plaintiff testified that these credits were made by defendant himself; this, defendant denied. Defendant also owed plaintiff $ 100 or more on account. Defendant remitted to plaintiff from November 10, 1885, to July, 1887, on several occasions, sums of from $ 3 to $ 10 each. Plaintiff testified that these were sent in response to demands on account of these debts. Defendant testified that they were intended as mere donations. The letters accompanying the remittances gave no directions as to the application of the amount sent. Ten dollars were sent by letter, dated November 10, 1885. Five dollars of this were credited on the note in suit under date of November 11, 1885.
The verdict on the facts was for the plaintiff, and from a judgment therein defendant appealed. The question is, whether the payments made and placed as credits upon the note in suit were sufficient to take it out of the statute of limitation. The circuit court held that they were so, if made as payments.
I. It is not disputed by the defendant that part payment of a demand will take it out of the statute of limitation, and if $ 50 were paid on the note June 28, 1877, and $ 5 dollars November 11, 1885, the action was not barred when it was commenced. Wood on Limitation, sec. 97, p. 221; Revised Statutes, sec. 6795; Shannon v. Austin, 67 Mo. 485; Beck v. Haas, 31 Mo.App. 180.
II. It is admitted that the money to the amount indicated by the credits on the note was paid by defendant to plaintiff, but defendant denies that he intended that it should be applied as payments on the notes.
The rule in reference to the appropriation of payments is well settled in this state. When a creditor holds several claims against his debtor, the latter, on making a payment, has the right to direct upon which debt it shall be credited; if he gives no direction, then the creditor, on receiving the payment, can make the application; if neither the debtor directs, nor the creditor applies, the payment, then the law will apply it to the debt which first matures, unless justice and equity demand a different appropriation. Gantner v. Kemper, 58 Mo. 567; Waterman v. Younger, 49 Mo. 413; McCune v. Belt, 45 Mo. 174; Wood on Limitation, sec. 110, p. 238.
There is no dispute about the payments made April 1, 1867, and April 1, 1868, of $ 300 each. These payments were properly credited on the note. As to the application of the credit of $ 50, dated June 28, 1877, the evidence is conflicting. Defendant testified that he directed the $ 100 collected to be paid on the $ 900 note, while plaintiff testified that defendant directed him to "credit it on both notes." His recollection was that defendant himself indorsed the credit on the note.
As to the credit of $ 5 November 11, 1885, the evidence shows that defendant transmitted to plaintiff $ 10 in a letter, in which he says: "Inclosed I send you the promised $ 10, I am sorry I cannot make it more." Plaintiff testified that this and other small remittances were made in answer to requests of payment on these notes. Defendant testified that these payments were not intended to apply on any indebtedness, "did not expect a credit on the note; just wanted to help him out." This evidence was ample to support the verdict of the jury that the $ 50 credit was placed upon the note by the direction of defendant, and that the $ 10 remittance was intended as a payment on existing indebtedness.
The court instructed the jury that they should find those facts or the note was barred by the statute of limitation. The instruction of the court on this question was full and fairly presented the theories...
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