Bisesi v. Farm and Home Savings & Loan Assn., 22994.

• Decision Date: 05 February 1935
• Docket Number: No. 22994.,22994.
• Citation: 78 S.W.2d 871
• Parties: MIKE BISESI, APPELLANT, v. FARM AND HOME SAVINGS AND LOAN ASSOCIATION OF MISSOURI, A BUILDING AND LOAN CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

78 S.W.2d 871

MIKE BISESI, APPELLANT, v. FARM AND HOME SAVINGS AND LOAN ASSOCIATION OF MISSOURI, A BUILDING AND LOAN CORPORATION, RESPONDENT.

No. 22994.

St. Louis Court of Appeals. Missouri.

Opinion filed February 5, 1935.

Rehearing Denied February 19, 1935.

Writ of Certiorari Denied April 16, 1935.

Appeal from the Circuit Court of the City of St. Louis. — Hon. O'Neill Ryan, Judge.

AFFIRMED.

Jacob F. Pfeffle and Lee, Fricke & Lee for appellant.

(1) It is elementary that, if respondent, after receiving the full purchase price, repudiated the contract for any reason, or no reason at all, appellant had the right to sue for recovery of the money paid. No cause of action of any character or description arises until the breach, repudiation or rescission of the contract. Sherman v. International Life Ins. Co. (en banc), 291 Mo. l.c. 141, 236 S.W. 634; M.K. & T. Ry. Co. v. Amer. Surety Co., 291 Mo. 92; 37 C.J. 858, note 59. (2) The receipt is an acknowledgment in writing of a state of facts; that is, payment of the purchase price for stock to be delivered, being the contract between the parties, out of which the law implies an obligation to repay the purchase money if the thing sold is not delivered, which obligation, therefore, does not rest in parol, but upon the writing, subject to explanation, if any. Steamboat Missouri v. Webb, 9 Mo. l.c. 194; Curtis v. Sexton, 201 Mo. l.c. 230; 55 C.J., p. 188, Sec. 143; Wind v. Bank of Maplewood & Trust Co., 58 S.W. (2d) l.c. 334; Aull v. St. Louis Trust Co., 149 Mo. l.c. 16. (3) In a suit on a receipt for the return of the purchase money paid, if the receipt is a valid agreement, the limitation is ten years under contracts, and not five years, under torts. Bridges v. Stevens, 132 Mo. 524; 37 C.J., p. 756, Sec. 86, notes 47 and 48.

Ewing, Ewing & Ewing and Bryan, Williams, Cave & McPheeters for respondent.

The five-year Statute of Limitation applies. (1) In order to come within the ten-year Statute of Limitations there must not only be a written promise to pay money or property, but the form of action must be one to enforce such promise, i.e., must be brought upon such promise to recover the specific property or money so promised to be paid. Revised Statutes Missouri 1929, Secs. 861 and 862; Herweck v. Rhodes, 327 Mo. 29, 34 S.W. (2d) 32; Parker-Washington v. Dennison, 267 Mo. 199, 183 S.W. 1041; Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257. (2) An action for money had and received to recover the purchase price paid under a written contract of sale of property, upon failure of the opposite party to deliver (an action founded upon a disaffirmance and rescission of a contract), cannot be an action upon the writing within the ten-year statute. Revised Statutes Missouri 1929, Sec. 862; Page on Contracts, Vol. 6, page 5707, Section 3242; 55 C.J., Secs. 1054, 1056, 1062, 1064 and 1071; City Light, Power, Ice and Storage Co. v. St. Mary's Machine Co., 170 Mo. App. 224, 156 S.W. 83; Beckley v. Hickerson, 315 Mo. 400, 286 S.W. 84; Brown v. Farmer Motor Co., 17 S.W. (2d) 615. (3) A cause of action arises the moment an action may be maintained to enforce the legal right so that the Statute of Limitations then begins to run. Schrabauer v. Schneider Engraving Products, Inc., 25 S.W. (2d) 529, and cases cited. (4) In this case the statute began to run when defendant failed to deliver to plaintiff the stock called for in the agreement within a reasonable time after it received the money therefor, and, as a matter of law, such reasonable time expired long prior to five years before this action was commenced. Page on Contracts, Vol. 6, page 5992, Section 3434, and cases cited; 55 C.J. 342; Beckley v. Hickerson, supra; J.B. Colt Company v. Kimball, 190 N.C. 169; 55 C. J. 359; McCall v. Atchley, 256 Mo. 39, 164 S.W. 593; Smith v. Shell, 82 Mo. 215; Union Wholesale Lumber Co. v. Milad Lumber Co., 251 S.W. 464; Van Trees v. Trimble, 214 Mo. App. 30, 251 S.W. 396; Brown Instrument Co. v. Universal Brick & Tile Co., 212 Mo. App. 462, 249 S.W. 128; Heller v. Ferguson, 189 Mo. App. 484, 176 S.W. 1126; Metropolitan Street Ry. Co. v. Broderick, 156 Mo. App. 640, 137 S.W. 633. (5) If rescission were necessary a reasonable time after the breach of the contract within which plaintiff might have made such a rescission expired long before five years before this action was brought. 55 C.J., page 290; Emery v. Shoe Co., 167 Mo. App. 703, 151 S.W. 174. (6) Statutes of Limitations are favored in the law are vital to the welfare of society. One of their purposes is to prevent the filing of fictitious claims after a lapse of time has rendered difficult an investigation of their genuineness. 17 R.C.L. 664; Shelby County v. Bragg, 135 Mo. 291, 76 S.W. 600; Wood v. Carpenter, 101 U.S. 135; Wheeler v. Mo. Pac. Ry. Co., 328 Mo. 888, 42 S.W. (2d) 579. Plaintiff, having chosen his form of action, is bound by the Statute of Limitations applicable to that form of action even though had he chosen a different form a different statute might apply. Alewel v. Johnson, 212 Mo. App. 211, 253 S.W. 161; Garrett v. Conklin, 52 Mo. App. 654.

BECKER, J.

This is an appeal in a suit for money had and received from the action of the trial court in setting aside a judgment in favor of plaintiff and sustaining motions of the defendant for new trial and in arrest of judgment.

Plaintiff's petition, filed June 4, 1931, alleges that he "deposited with defendant under the writing set out in the next succeeding paragraph, the sum of two thousand ($2,000.00) dollars, which said sum so deposited and received by defendant has not been returned to plaintiff up to the date of the filing of this suit, notwithstanding repeated demands therefor, nor has defendant delivered to plaintiff-tiff the shares in said writing mentioned:

                "`$2,000.00          Nevada, Mo., 12/20 1923
                   "`Received of Mike Bisesi two thousand
                dollars for 20 shares fully paid
                        "`Farm and Home Savings and Loan
                                  Association of Missouri
                              "`By [Signed] Vosburgh.'
                

"Wherefore, the premises considered, plaintiff demands judgment against defendant for money had and received in the sum of two thousand ($2,000.00) dollars, together with interest at six per cent from the said 20th day of December, 1923, together with his costs in this behalf herein reasonably expended."

The defendant's answer was a general denial coupled with a plea that plaintiff's cause of action, if any, was barred by the five-year Statute of Limitation. Plaintiff's reply was conventional.

At the trial of the case and prior to the introduction of any evidence, counsel for defendant offered a demurrer ore tenus to the introduction of any evidence on the ground that it appears from the face of the petition that plaintiff's cause of action is barred by the five-year Statute of Limitation, under sec. 862, Rev. Stat. of Mo. 1929 (Mo. Stat. Ann. sec. 862, p. 1143), which demurrer the Court overruled.

At the trial to a jury plaintiff himself testified that on December 20, 1923, he had paid the defendant the sum of two thousand dollars for twenty shares fully paid stock of the defendant company, and had received from defendant's agent the receipt set out in plaintiff's petition; that he had never received the stock nor had he ever gotten back his two thousand dollars or any part thereof; that in March, 1931, he found the said receipt in his safe deposit box and turned it over to his attorney who took it to the defendant company, where his attorney learned that the Franklin-American Bank had surrendered to defendant company a certificate for twenty shares of stock made out in plaintiff's name and allegedly endorsed by plaintiff, and that the said Franklin-American Bank had been paid by defendant the full amount due on said twenty shares of stock. Plaintiff further testified that he had not cashed such certificate nor caused it to be cashed, and that the signature purporting to be his on the back of the said certificate was not in fact his signature.

Defendant admitted the receipt of two thousand dollars from plaintiff on the date alleged, and the issuing of the receipt therefor, set out in plaintiff's petition.

Clifford R. Vosburgh, an agent and employee of the defendant company, testified that he had personally delivered the certificate called for in plaintiff's said receipt to the plaintiff within several days after having received the money from plaintiff, but that plaintiff did not return to him the said receipt. This witness explained that a fully paid certificate in the defendant company "runs for four years and pays six per cent interest semiannually."

At the close of plaintiff's case, and again at the close of the entire case, defendant requested an instruction in the nature of a demurrer, each of which was refused.

Upon submission of the case to the jury a verdict was returned for the full amount sued for together with interest. In due course defendant filed its motions for new trial and in arrest of judgment. The Court sustained the motion for new trial on the following grounds:

"4. The Court erred in overruling defendant's objection to the introduction of any testimony upon the ground that it appears upon the face of the petition in this cause that defendant's action accrued more than five years prior to the commencement of this action and is barred by Section 862 of the Revised Statutes of Missouri, 1929.

"5. The Court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff's case.

"7. The Court erred in refusing to give the instruction offered by defendant at the close of all the evidence directing the jury to return a verdict in favor of defendant."

The Court also sustained the motion in arrest of judgment on both grounds set up therein, namely:

"1. That it appears from the face of the petition that plaintiff's cause of action accrued more than five years prior to the filing...