Doerge v. Heimenz

• Decision Date: 27 January 1880
• Citation: 8 Mo.App. 255
• Parties: GUSTAVE DOERGE, Defendant in Error, v. HENRY HEIMENZ, ADMINISTRATOR, Plaintiff in Error.
• Court: Missouri Court of Appeals

8 Mo.App. 255

GUSTAVE DOERGE, Defendant in Error,

v.HENRY HEIMENZ, ADMINISTRATOR, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Jan. 27, 1880.

1. Where, in an action of assumpsit, the defendant pleads the Statute of Limitations, and in reply the plaintiff alleges that interest has been paid on the debt within the time of limitation, the case is properly brought on the original promise.

2. The special bar of the administration law operates only where there has been a publication of the grant of letters as required by law; actual notice is insufficient.

ERROR to the St. Louis Circuit Court.

Affirmed.

LOUIS GOTTSCHALK, for the plaintiff in error: No cause of action is presented; the facts alleged show that the claim based thereon is barred by the Statute of Limitations.-- The State to use v. Bird, 22 Mo. 470; Boyd v. Christy, 47 Mo. 70.

JECKO & HOSPES, for the defendant in error.

HAYDEN, J., delivered the opinion of the court.

This case has been here before, and is reported 1 Mo. App. 238. Upon the new trial there was an agreed statement of facts, and from this it appears that the plaintiff lent to the intestate, Horst, and his partner, Brusselbach, sums of money at different times, the last item being of date January 5, 1867; that the partners hired the plaintiff, and that he was in their service from September 5, 1866, to August 5, 1867, at $20 a month; that Brusselbach paid to plaintiff $50 on May 10, 1868, and that Horst paid to the plaintiff, on May 12, 1868, $60 on account of the interest accrued on the demands here sued on, up to that date. The present suit was brought on the twenty-first day of March, 1873.

The objection to the petition is not well taken. The suit is properly brought on the original promise, and not on an implied promise raised by the payment of interest, which payment is properly pleaded in the reply, as a replication to the defendant's plea of the Statute of Limitations. Carr v. Hurlbut, 41 Mo. 269. Whether the petition was demurrable is not here in question, as the defendant did not demur to the petition, but pleaded the statute, and the case was heard on an agreed statement of facts, which was filed. The administrator of Horst published no legal notice of the grant of letters of administration, and the alleged actual notice to the plaintiff's attorney amounts to nothing. 1 Mo. App. 238. The question arises upon the general limitation of five years.

When the case was here before, the plaintiff apparently relied on the exemption contained in the twentieth section of the Statute of Limitations, which section is construed by the court in the opinion then delivered. Upon the new trial new evidence was introduced, as above given, in regard to the payment...