Briscoe v. Kinealy

• Decision Date: 25 November 1879
• Parties: JOHN B. BRISCOE, Appellant, v. MICHAEL KINEALY, Respondent.
• Court: Missouri Court of Appeals

8 Mo.App. 76

JOHN B. BRISCOE, Appellant,

v.MICHAEL KINEALY, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 25, 1879.

1. It is not error to refer a case involving the examination of an account embracing over twenty items of mutual debits and credits, arising out of complicated transactions extending over three years of time.

2. Where parties to a settlement ascertain the amount due from one to the other, and the debtor, at the solicitation of the creditor, without any other or valuable consideration, adds thereto the amount of an unjust claim of the latter, for which there is no foundation, and executes a note for the whole amount as between the parties, the note is without legal consideration and void as to the amount thus added.

3. A note expressed to bear interest from date bears the same rate of interest after as before maturity.

APPEAL from the St. Louis Circuit Court.

Reversed, and judgment.

N. HOLMES and E. J WHITE, for the appellant: “A compromise of a disputed liability is binding though it turns out that the party was not liable.”-- Cook v. Wright, 1 Best & S. 559; Mullanphy v. Reilly, 8 Mo. 675; s. c. 10 Mo. 489; Reilly v. Crouquette, 18 Mo. 226; McKinney v. Watkins, 13 Ill. 140; Faust v. Birmer, 30 Mo. 418; Marks v. Bank, 8 Mo. 319. A note bearing interest from date bears the same rate after maturity.--Wag. Stats. 783, sects. 2, 3; Cromwell v. County, 96 U. S. 51; Finley v. Acock, 9 Mo. 841; Payne v. Clarke, 23 Mo. 259; Cordell v. Bank, 64 Mo. 600. Reference.-- Dooley v. Barker, 2 Mo. App. 325.

MICHAEL KINEALY, pro se: Non-conclusiveness of the settlement.--2 Chitty on Con. 964, 966; Warren v. Bishop, 22 Vt. 611; Brown v. Tarkington, 3 Wall. 377; Long v. Towl, 42 Mo. 548. When a note on its face calls for interest from date, at a higher rate than that fixed by law, in the absence of a special contract the agreement on the face of the paper is presumed to be intended to last until the maturity of the obligation, after which the contract for interest is presumed to be for the legal rate.-- Eaton v. Boissonault, 5 Reporter (1878), 270; Cook v. Fowler, L. R. 7 H. L. 27; Ludwig v. Hutsinger, 5 Watts & S. 51; Hubbard v. Callahan, 42 Conn. 524; Pierce v. Hennessy, 10 R. I. 223; Robinson v. Kinney, 2 Kan. 184; United States Bank v. Chapin, 9 Wend. 471; Macomber v. Dunham, 8 Wend. 550; Brewster v. Wakefield, 22 How. 118; Burnhasel v. Firman, 22 Wall. 170.

LEWIS, P. J., delivered the opinion of the court.

This is a suit on a promissory note for $511.54. The defendant admits the execution of the instrument, but pleads a total want of consideration. The case was heard by a referee, who found that, as to the sum of $353.85, part of the note, there was no consideration, and the defendant was not liable thereon. As to the residue, $157.69, the referee's finding was against the defendant. The note was dated February 1, 1868, payable twelve months after date, and expressed to bear “interest from date, at the rate of ten per cent per annum.” The referee found that plaintiff was entitled to interest on the amount due, at the rate of ten per cent until the maturity of the note, and to no more than six per cent afterward. Judgment was rendered accordingly, and the plaintiff appealed.

The plaintiff alleges error in the order of reference, assuming that this was not a case to go before a referee without the consent of both parties. The development of the defence required an examination of mutual debits and credits between the parties extending over a period of about three years, and including from twenty to thirty items. The transactions were various: relating to loans and deposits of money, sales of personal property, premiums on gold advances, interest, etc. It is undoubtedly true, that while the order of reference is largely a matter of discretion with the court, there are yet many cases in which there can be no such order, against the consent of either party, without error. In Dooley v. Barker, 2 Mo. App. 325, it was held erroneous so to refer a case in which the account contained substantially only three items, which were subdivided into a semblance of eight, all of them being on one side. There is no fixed rule by which it can be determined how many items, and of what description, will be necessary to meet the statutory standard of “a long account.” We cannot say, in the present instance, considering the complicated nature of some of the mutual transactions, that there was any abuse of authority, or error otherwise, in sending the case to a referee.

It appears from the testimony that Mrs. Winifred Briscoe, who was the mother of the plaintiff and of the defendant's wife, sold two tracts of land in Ralls County, in the year 1863, for the sum of $750. It was suggested by some one that Mrs. Briscoe's children were possibly entitled to some reversionary interest in one of the tracts. In order to make everything satisfactory with the purchaser, the plaintiff, together with his sister and the defendant, her husband, joined in the conveyance of the land. In 1864, Mrs. Briscoe died, leaving a will, in which, after a small legacy to the plaintiff, she bequeathed the residue of her estate, real and personal, to the wife of defendant. Some time afterwards, the plaintiff claimed that he ought to be paid $250 for his alleged reversionary interest of one-third in the land which his mother had sold in her lifetime, when he had joined in the deed. The defendant had become administrator, with the will annexed, of Mrs. Briscoe's estate. The plaintiff never presented his demand for allowance against the estate; but after the statutory period for allowances had expired, he became persistent in personal demands upon the defendant for payment of his alleged claim. The defendant uniformly repudiated any and all liability or interest whatever in the premises. From this point there are some conflicts in the testimony. The findings of the referee indicate, substantially, the following state of facts: From 1865 to 1868, inclusive, there were numerous transactions between the plaintiff and defendant, with occasional partial adjustments of their accounts, but no complete settlement. Towards the latter part of this term there was no little unkind feeling between them. On February 1, 1868, they met together and cast up all their accounts on both sides, thus reaching, as the result, a balance in the plaintiff's favor of $157.69. The plaintiff at this time was importunate about his claim on account of his mother's land sale, which the defendant, as he testifies, uniformly refused to recognize. According to defendant's account, the plaintiff beset his sister with importunities on this subject, until she entreated the defendant, her husband, for the sake of peace in the family, to satisfy her brother's demand. The defendant yielded to this persuasion, and in giving to plaintiff a note, as agreed upon, for the balance due upon settlement, voluntarily, and without other or valuable consideration of any sort, added therein the sum of $353.85, which represented the $250 claimed by the plaintiff, with interest thereon from the date of the land sale. The referee held, as before stated, that for so much of the note there was no legal consideration, and the obligation was void as against the defendant.

It is urged for the plaintiff, that this claim on account of the land sale was one of the matters included in the account stated between the parties; that the account was the real consideration for the note, and it is not allowable to go behind that which the parties themselves have agreed upon. The defendant makes two answers to this proposition: 1. It appears from the referee's finding that this item was not considered in the account stated of mutual debts and credits; but the balance was first ascertained, and struck at a specific sum, which did not include it; and that afterwards this sum of $353.85 was added, not as an indebtedness agreed upon, but as a mere gratuity, for the sake of peace, and as a relief to the defendant's family. 2. Even if it be considered as a part of the settlement, it appears from the authorities that, inasmuch as there was no shadow of legal demand or obligation affecting the defendant on account of that claim, a settlement including it could not create one. If the claim were doubtful or disputed, and yet having some foundation, however frail, to rest upon, the defendant's consent to its incorporation in the account, and his promise to pay, would be conclusive upon him. But here the defendant was an entire stranger to the plaintiff's demand, if any he had. If it ever existed against the estate of Mrs. Briscoe, the limitation of demands against estates of deceased persons had long since barred it. It was not pretended that the defendant had ever assumed any personal responsibility concerning it. There was literally nothing to suggest an existing demand against him, any more than against a person yet to be born.

In Warren v. Bishop, 22 Vt. 607, there...