Brown v. Irving

• Decision Date: 09 February 1925
• Docket Number: No. 15265.,15265.
• Citation: 269 S.W. 686
• Parties: BROWN v. IRVING.
• Court: Missouri Court of Appeals

269 S.W. 686

BROWN v. IRVING.

No. 15265.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Rehearing Denied February 28, 1925.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Walter Brown against Junius B. Irving. Judgment for defendant, and plaintiff appeals. Affirmed.

Haff, Meservey, Michaels, Blackmer & Newkirk, and W. C. Michaels, Henry I. Eager and Roy P. Swanson, all of Kansas City, for appellant.

Wendell H. Cloud and O. H. Brinkman, both of Kansas City, for respondent.

BLAND, J.

This is a suit on a contract to recover the sum of $3,600. The court sustained defendant's demurrer to the petition, and plaintiff has appealed. The petition states: "Plaintiff alleges that he is assignee of all the rights and claims of Amelia Brown, C. A. Brown, and Etta M. Brown under the contracts hereinafter mentioned"—and that a written contract was entered into on June 13, 1912, whereby plaintiff and three others, the owners of 99 shares of common stock of the Irving-Pitt Manufacturing Company, a Missouri corporation, agreed to surrender said stock to the defendant, the president of the company, who desired to acquire the same in order to reorganize the company and to increase its capital stock; that defendant agreed that said reorganization should be effected, and that plaintiff and the Browns should receive 1,100 shares of preferred stock in the new company in exchange for their 99 shares of common stock in the old; that on June 21, 1913, "said contract was amended or supplemented by a writing" signed by the defendant, and—

"* * * that by said amendment or supplement defendant agreed to pay to plaintiff in consideration of the exchange of stock provided for in the agreement of June 13th, 1913, a sum in cash equal to the difference between $12,500 and the cost of reorganization of said company and sale of $90,000 par value of the preferred stock of said company; that plaintiff and said other owners of said 99 shares of said common stock complied with all of the terms of said contract as amended, obligatory on them; that on or about July ___, 1913, said reorganization of said company was effected, and that the cost thereof was $1,366.95, leaving due to plaintiff under the terms of said contract the sum of $11,133.05; that of said amount due defendant paid to plaintiff on August 1, 1913, the sum of $7,533.05, leaving due to plaintiff on said contract as amended the sum of $3,600, no part of which has been paid, although often demanded."

The prayer asked judgment for $3,600 and interest.

The grounds of the demurrer were, first, that the petition on its face showed that plaintiff did not have legal capacity to sue; second, that there was a defect of parties plaintiff; third, that the cause of action pleaded in the petition was barred by the 5-year statute of limitations; and, fourth, that the petition did not allege facts sufficient to constitute a cause of action. The demurrer was sustained generally.

It is insisted by defendant that the cause of action alleged in the petition is barred for the reason that the 10-year statute of limitations (section 1316, R. S. 1919), providing that an action upon any writing for the payment of money or property shall be commenced within 10 years, does not apply. It is contended that this is not an action upon a writing for the payment of money, and that the 5-year statute of limitations applies. This statute (section 1317, R. S. 1919) provides that "all actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 1316" shall be commenced within five years. It is insisted that the supplementary contract—

"* * * is merely an understanding that if after paying the cost of reorganization and paying for the sale of the preferred stock, there was any difference left between the sum of those two items and $12,500, the defendant would account to the plaintiff for the difference."

We do not think the petition alleges a cause of action for accounting; it plainly alleges a cause of action on a contract for the balance due thereunder. But defendant insists that "it is not possible, by any process of construction which may be utilized, to determine from the memorandum that any amount was or is due from the defendant to the plaintiff"; that "it is impossible for the plaintiff to establish his cause of action without the proof of certain conditions arising entirely outside of the writing involved"; "that the writing subject to the 10-year limitation must be one that clearly implies an obligation to pay—not contingent upon the performance of anything else by the other party."

It is held that if evidence aliunde of the contract is necessary in order to establish the promise, the 10-year statute does not apply, Babler v. Rhea (Mo. App.) 202 S. W. 604, 605, but it is the promise to pay that must be provided for by the language of the writing, and such a promise cannot arise by proving extrinsic facts. However, the amount to be paid may be shown by evidence aliunde. The 10-year statute of limitations applies if the cause of action is upon any writing for the...