Carter v. Carter

• Decision Date: 31 March 1869
• Citation: 44 Mo. 195
• Parties: H. L. CARTER, Administrator of B. ENGLISH, Appellant, v. SAMUEL H. CARTER et al., Respondents.
• Court: Missouri Supreme Court

44 Mo. 195

H. L. CARTER, Administrator of B. ENGLISH, Appellant,

v.SAMUEL H. CARTER et al., Respondents.

Supreme Court of Missouri.

March Term, 1869.

Appeal from Lincoln Circuit Court.

D. P. Dyer, for appellant, relied upon 37 Mo. 341, and Ang. on Lim. 264, § 3, and cases cited.

WAGNER, Judge, delivered the opinion of the court.

This was an action, originally brought before a justice of the peace, on a promissory note made by defendants to plaintiff's intestate. The note was dated on the 21st day of February, 1847, and on the 10th day of November, 1855, a small credit was indorsed on it in the handwriting of English, the payee and intestate. The suit was commenced on the 23d day of October, 1865, and the defense set up was the statute of limitations. The defendants had judgment in the magistrate's court, and, on appeal to the Circuit Court, the note was read in evidence, and the indorsement thereon, without objection. No other evidence was offered or introduced, and the court affirmed the decision of the justice of the peace. The single question presented for decision is whether the indorsement in the handwriting of the payee was sufficient evidence of payment to take the case out of the operation of the statute of limitations. The indorsement was read without objection, and it is therefore evidence before the court.

In Coffin v. Bucknam (3 Fairf. 471), an action was commenced by an administrator more than six years after the date of the note; there was an indorsement on the note in the handwriting of the intestate, purporting to be made about two years before the statute of limitations would attach, and six months prior to his death; and it was held that the jury might regard the indorsement as evidence of a new promise, though there was no other proof of the time when the indorsement was actually made. The court said that the credit would not have been placed on the back of the note if the money had not been paid--and it could have been paid only by the defendant, or by some one authorized by him--that the inference of payment was justified by common experience, and of a character to satisfy the mind. Such proof was a kind of moral evidence in regard to which no reasonable doubt could be entertained. It is the usual, ordinary, and well-known course of business that partial payments are forthwith indorsed on the back of the security, the indorsement thus becoming part of the res gestæ. Wherever, therefore, an indorsement is shown to have been made at...