Davis v. Herring

• Decision Date: 31 August 1839
• Citation: 6 Mo. 21
• Parties: DAVIS v. HERRING.
• Court: Missouri Supreme Court

6 Mo. 21

DAVIS

v.HERRING.

Supreme Court of Missouri.

August Term, 1839.

DAVIS, for Plaintiff. The case is brought here by writ of error. And the sufficiency of the facts sworn by that witness to take the case out of the statute of limitations is the questions now made for the decision of this court. See the case McLean Adm'r of Brockman, v. Thorp, 4 Mo. R. 256, and books there cited.

CLARK, for Defendant. The only material point I consider in this case is whether the evidence given by plaintiff of the promise to pay, was sufficient to take it out of the statute of limitation. We think it was and rely upon the authority of McLean v. Thorp, decided by this court, and reported in 4 Mo. R. 256.

NAPTON, J.

This was an action of debt brought by Davis, as executor of Rebecca Hering, against the defendant David Herring on a bond and a note given by defendant to testatrix. Defendant plead the statute of limitations Upon the trial plaintiff offered the testimony of one Bagby, to take the case out of the statute, and the only point raised here is as to the sufficiency of this evidence. The witness stated, that the testatrix left the two notes sued on with him as an agent to get them renewed by defendant, and that he applied to defendant as such in the year 1835, to get them renewed--that the defendant promised to do so, and failed--that he again promised to renew the notes and said he would do it on Monday morning--that it was then too late in the evening, and before Monday testatrix died. The witness further testified, that at the the same time the notes were placed in his hands by testatrix, she also placed some accounts for settlement against defendant; that his application to defendant at each time was for him to come to testatrix's house and make a settlement of the accounts and renewal of the notes--that he did not know the amount of the accounts--nor did he show to defendant either of the notes, nor state to him their amount--that he never knew of any other notes held by the testatrix on defendant than the two he held and that they are the notes sued on. On this evidence the court gave judgment on the notes and defendant moved for a new trial, and in arrest, which motions were both overruled.

Both parties refer to the decision in McLean v. Thorp, 4 Mo. R. 358, for the rule which is to govern this case. It is unnecessary to review the authorities upon which that case was decided. The principle established by the court was, that in order to take a case out of the statute of limitations, an express acknowledgment of...