Brown v. Brown

• Decision Date: 01 May 1928
• Docket Number: No. 20165.,20165.
• Citation: 5 S.W.2d 644
• Parties: BROWN v. BROWN et al.
• Court: Missouri Court of Appeals

5 S.W.2d 644

BROWN v. BROWN et al.

No. 20165.

St. Louis Court of Appeals. Missouri.

May 1, 1928.

Appeal from Circuit Court, Audrain County; Emil Roehrig, Judge.

"Not to be officially published."

Action by G. H. Brown against Cleveland Brown and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Fry & Hollingsworth, of Mexico, Mo., for appellant.

A. C. Whitson and J. M. Bone, both of Mexico, Mo., for respondents.

BENNICK, C.

This is an action upon a negotiable promissory note, executed on March 18, 1914, by defendants Cleveland Brown and Mettie A. Brown in favor of plaintiff, G. H. Brown, for $1,000, due 1 year after date, and bearing interest at the rate of 8 per cent. per annum. The case was tried to a jury, resulting in a verdict for defendants; and from the judgment duly rendered, plaintiff has appealed.

The petition was in the usual form for cases of this character, and alleged a partial payment, in the sum of $40, made by defendants on November 1, 1923.

Defendants filed separate answers, in each of which they interposed, in addition to a general denial, a specific denial of any payment on the note, together with pleas that the note was barred by the 10-year statute of limitations, and that it was void and without consideration in that, at the time of the execution of the note, plaintiff, as guardian of defendant Cleveland Brown, had in his hands money and property of such defendant in excess of the amount of the note, and that the same had been advanced to said defendant out of such money and property.

Motions to strike out such pleas of failure of consideration were filed by plaintiff, and overruled by the court, to which action plaintiff duly excepted. A reply in conventional form was thereupon filed by plaintiff to each of such answers, and upon the issues so made the case proceeded to trial.

Plaintiff, G. H. Brown, is the uncle of defendant Cleveland Brown, and the brother-in-law of defendant Mettie A. Brown, who is the mother of Cleveland, and the widow of plaintiff's brother, John W. Brown. Upon the death of the latter in 1903, plaintiff and another brother, B. A. Brown, were appointed guardians of the person, and curators of the estate, of Cleveland, such relation continuing until 1913, when Cleveland attained his majority, and the final settlement was made and approved by the probate court.

There is no dispute between the parties that defendant Cleveland Brown obtained the sum of $190 from plaintiff on March 17, 1914, and a further sum of $810 on March 23, 1914, and that it was to cover such loans that the note in question was executed by Cleveland as principal, and by his mother as surety.

Upon the issue of the payment of the sum of $40 on the note, on November 1, 1923, plaintiff's testimony was that he had purchased a number of bushels of wheat from Cleveland, in payment for which, at the latter's request, he credited him with $40 on the note, and gave him the balance due on the transaction in cash. The evidence for defendants, to the contrary, was that Cleveland objected to the application of such credit on the note, and that he at that time, and also subsequently, demanded payment in full for the wheat, his theory being that plaintiff, in the final settlement of the estate, had withheld from him an amount in excess of the principal sum of the note, and that, consequently, he was not indebted to plaintiff.

In arriving at the theory on which the case was submitted to the jury, we observe that the court, at the request of plaintiff, withdrew from the jury the plea of want of consideration, based upon the assumption that the money which plaintiff had loaned to defendant Cleveland Brown came out of guardianship funds in the hands of plaintiff, and specifically instructed them that the only issue for their determination was whether the credit entry on the note had been made with the consent of defendant Cleveland Brown. On behalf of defendants, the court instructed the jury that, if they found that such credit had been indorsed upon the note without the consent of defendant Cleveland Brown, then the note was barred by limitation of time, and plaintiff could not recover thereon.

The first point urged by plaintiff is that the court erred in refusing, at the close of the whole case, to instruct the jury peremptorily to return a verdict in his favor for the amount due on the note, including interest. Concededly, the propriety of the court's action in this respect is determinable solely in the light of the effect to be given to the evidence regarding the partial payment indorsed upon the note on November 1, 1923, the real question at issue (in view of the court's withdrawal of the defense of want of consideration) being whether the present action, instituted on October 31, 1925, or more than 10 years after the maturity of the note, was barred by limitation of time.

Generally speaking, the rule is well established that the mere indorsement of a partial payment upon a note will not in and of itself toll the running of the statute of limitations. Instead, the burden is on the one seeking to uphold the right of action, to show that such indorsement or payment was made by or with the consent of the payor, or under such circumstances as to warrant the inference that he thereby recognized the debt, and signified his willingness to pay it; and the mere entry of a credit by the holder of the note, without the consent of the payor, will be ineffective to check the operation of the statute. Regan v. Williams, 185 Mo. 620, 631, 84 S. W. 959, 105 Am. St. Rep. 600; Phillips v. Mahan, 52 Mo. 197; Goddard v. Williamson's Adm'r, 72 Mo. 131; Wright v. Wayland (Mo. App.) 188 S. W. 928; Gardner v. Early, 78 Mo. App. 346; McElvain v. Garrett, 84 Mo. App. 300; 37 C. J. 1151 et seq.

It is quite true in this case that plaintiff's own evidence tended to prove that the indorsement of the credit upon the note had been assented to by defendant Cleveland Brown. If there had been nothing...