Bridges v. Stephens
| Decision Date | 03 March 1896 |
| Parties | Bridges, Appellant, v. Stephens |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Reversed and remanded.
Lee & McKeighan and Montague Lyon for appellant.
(1) The circuit court erred in declaring the law to be that the appellant was not entitled to recover, because the promise and agreement of the respondent not to plead the statute of limitation was not made in writing. It was not necessary that the promise or agreement should be in writing. 1 Wood on Limitations [2 Ed.], sec. 76, pp. 228, 229; 2 Herman on Estoppel and Res. Adj., sec. 825, pp. 955, 956; North v Walker, 2 Mo.App. 174; S. C., 66 Mo. 453; County of Vernon v. Stewart, 64 Mo. 411; Wright v. Pratt, 17 Mo. 43; Armstrong v. Levan, 109 Pa. St. 177; Daniel v. Board, 74 N.C. 494; Barcroft & Co. v Roberts & Co., 91 N.C. 363; Joyner v. Massey, 97 N.C. 148; Hill v. Hilliard, 9 S.E. (S. C.) 639; Lowry v. Dubose, 2 Bailey (S. C.), 425; Shreve v. Joyce, 36 N.J.Eq. 44; Smith v. Lawrence, 38 Cal. 24; R. S. 1889, sec. 6789; Walker v. Sayers, 5 Bush (Ky.) 579; Reid v. Hamilton, 18 S.W. 770; Randon v. Toby, 11 How. (U.S.) 517. (2) The circuit court erred in rendering judgment for the respondent, notwithstanding the fact that the court found from the parol testimony, admitted without objection on the part of the respondent, that the respondent promised and agreed not to plead the statute of limitation, and notwithstanding the fact that the court declared the law to be that under the pleadings and evidence the appellant was entitled to recover, provided the causes of action were not barred by the statute of limitation pleaded by the respondent. The respondent's promise or agreement was sufficiently proven by the evidence, although not in writing and even though it was necessary that the promise or agreement should be in writing. Montgomery v. Edwards, 46 Vt. 151; Ray v. Rood, 62 Vt. 293; Browne on Statute of Frauds [4 Ed.], sec. 135, p. 151; Hobart v. Murray, 54 Mo.App. 249.
George D. Reynolds and E. P. Johnson for respondent.
(1) A receiver of a national bank acts under the direction of the comptroller and the courts, and any act requiring discretion, such as distributing assets or making contracts, when done by him without such direction, is without authority and void. There is no evidence in this case tending to show any such authority in respondent. Kennedy v. Gibson, 8 Wall. (75 U.S.) 498, p. 505; Bank v. Kennedy, 17 Wall. (84 U.S.) 19; Ellis v. Little, 27 Kan. 707. (2) First. The statute of limitations in force in this state (and most of the other states) prior to 1845, was that of 21 James II, and it did not require a promise to continue or revive a debt to be in writing. McLean v. Thorp, 4 Mo. 256, p. 259; Bishop on Contracts [En. Ed.], sec. 1362. Second. The act of May 9, 1828, Statutes at Large, 9 George IV, ch. 14, p. 18 (commonly called Lord Tenterden's act), engrafted the statute of frauds on the statute of limitations, and required such promises to be in writing. This latter statute was in substance enacted in Missouri (and many other states). R. S. Mo. 1845, p. 720, sec. 13, and is now sec. 6793, R. S. Mo. 1889. Under this statute a distinction is made between continuing and reviving a debt, the former being a promise before the bar has attached, and the latter after it has attached. McCormick v. Brown, 36 Cal. 180. Third. The promise under the present statute must not only be an acknowledgment of the debt in writing, but must also include a promise to pay it, either directly or by necessary implication, in order to be effective. Blackburn v. Jackson, 26 Mo. 308; Martin v. Branham, 86 Mo. 643; Chidsey v. Powell, 91 Mo. 622; Wells v. Hargrave, 117 Mo. 563; Kirkbride v. Gash, 34 Mo.App. 256. Fourth. An agreement not to plead the statute of limitations is not a promise to pay the debt (1 Wood on Lim. [2 Ed.], sec. 76, pp. 228, 229), and such an agreement must be supported by a new consideration in order to make it binding. Price v. Price, 34 Iowa 404; Wilson v. Powers, 130 Mass. 127, 128; Greer v. Coos Bay Wagon Co., 23 F. 67; Warren v. Walker, 23 Me. 453; Shapley v. Abbott, 42 N.Y. 443. Fifth. Under Lord Tenterden's act, both the English and the American courts in the states where it has been enacted, have held that an agreement not to plead the statute must be in writing in order to be binding. Hodgdon v. Chase, 29 Me. 47; Hodgdon v. Chase, 32 Me. 169, and see Brown v. Edes, 37 Me. 318; and Warren v. Walker, 23 Me. 453; Price v. Price, 34 Iowa 404; Shapley v. Abbott, 42 N.Y. 443; Green v. Seymour, 59 Vt. 459; Greer v. Coos Bay Wagon Co., 23 F. 67; Weatherwax v. Consumnes Valley Mill Co., 17 Cal. 344; McCormick v. Brown, 36 Cal. 180; Bishop on Contracts [En. Ed.], sec. 1362; 1 Wood on Lim. [2 Ed.], sec. 137, p. 373, on p. 374; 13 Am. and Eng. Encyclopedia of Law, p. 718, third paragraph of note 2. Sixth. Even a written acknowledgment of a debt, when made to an agent of the creditor, must be made with knowledge of the agency on the part of the debtor, in order to continue or revive it. Williamson v. Williamson, 50 Mo.App. 194. (3) The failure of appellant to preserve the evidence and proceedings in this case in his bill of exceptions, is fatal to the latter contention, as other evidence and proceedings to sustain the judgment will always be presumed, and he who assigns error must make that error apparent. Guinn v. Boas, 31 Mo.App. 131; Foster v. Nowlin, 4 Mo. 23; Vaughan v. Montgomery, 5 Mo. 529; Walsh v. St. Louis, 73 Mo. 71; State ex rel. v. Maloney, 113 Mo. 372; Flynn v. City of Neosho, 114 Mo. 572.
Gantt, J. Barce, C. J., and Macfarlane, J., concur; Barclay, J., concurs in reversing and remanding the cause for reasons assigned in his separate opinion. Burgess, Sherwood, and Robinson, JJ., dissent.
In Banc.
The Fifth National Bank of St. Louis was duly organized under the laws of the United States for the organization of national banks. Its capital stock was $ 300,000. On the twenty-seventh day of November, 1886, a meeting of its stockholders was called to be held on December 11, 1886, to vote upon a proposition to increase the capital stock of said bank in the sum of $ 200,000. The meeting was held, and by a vote of over two thirds of the stockholders it was duly resolved "that under the provisions of the act of March 1, 1886, the capital stock of this association be increased in the sum of $ 200,000." There were subscriptions to this new stock amounting to $ 130,000, and among the subscribers therefor were Altheimer Brothers, for seventeen shares of the par value of $ 100 each and Julius Thoss for five shares. Thoss paid in the whole of his subscription on July 1, 1887, and Altheimer Brothers deposited on different days from February 1, 1887, down to and including October, 1887, $ 1,530 of the $ 1,700 by them subscribed. The whole amount of the proposed increase of capital was never subscribed and the certificate of the comptroller of the currency of the United States specifying the amount of said proposed increase of capital stock, with his approval thereof and that it had been paid in as part of the capital stock of said bank, was never obtained.
On the eighth day of November, 1887, the said bank had become and was insolvent and suspended business and on the fifteenth day of November, 1887, the comptroller of the currency, having become satisfied of the insolvency of said bank, appointed the defendant, Lon V. Stephens, receiver of said bank and the said defendant at once qualified as such and took charge of all of its books, papers, and assets of every kind and character and has since administered upon the same under the direction of the comptroller.
Immediately upon assuming the direction of the affairs of said bank, the defendant, as receiver, caused notice to be duly given, of date November 15, 1887, that all persons having claims against said bank should present the same to him for allowance within three months from that date. In the meantime Altheimer Brothers had purchased and taken an assignment of the claim of Julius Thoss for $ 500, and on February 3, 1888, and within the time limited in said notice, duly presented the said claims for $ 1,530 and $ 500 above described, to said receiver, the defendant herein, for allowance and the same were rejected on February 4, 1888.
The claim of Messrs. Altheimer Brothers was founded upon the proposition that as they had subscribed for seventeen shares of the proposed increase of $ 200,000 and the amount proposed was never subscribed, they did not become stockholders by virtue of their subscription and payments thereon but were entitled to be treated as creditors of the bank upon its insolvency as was held in Schierenberg v. Stephens, 32 Mo.App. 314. The claim having been rejected it appears various efforts were subsequently made by Messrs. Altheimer Brothers to obtain their allowance until December, 1890, at which time they again demanded that said claims be allowed, but the defendant again refused. Thereupon the evidence tends strongly to prove, and it was found by the court, that Altheimer Brothers informed defendant they would commence suit on said causes of action in January, 1891, whereupon defendant requested them not to do so; that he was desirous of adjusting said claims without suit.
The matter was allowed to drift along in this shape until August, 1892, when Messrs. Altheimer Brothers, through their counsel Mr. Montague Lyon, stated to defendant that inasmuch as five years from the appointment of defendant as receiver would expire November 15, 1892, they would be compelled to commence their action on said claims in order to avoid the interposition by defendant of the statute of limitations...
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