Dunlap v. Kelly

• Decision Date: 08 January 1906
• Citation: 115 Mo. App. 610,92 S.W. 140
• Parties: DUNLAP v. KELLY.
• Court: Missouri Court of Appeals

92 S.W. 140

115 Mo. App. 610

DUNLAP v. KELLY.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

1. BILLS AND NOTES — INDORSEMENTS — PAYMENTS—INTEREST.

Where a note sued on was dated December 10, 1890, and contained indorsements of payments the last of which was on December 11, 1893, which payments exceeded the interest due at that time, it was error to direct a verdict for plaintiff for the principal of the note and interest from December 10, 1893, in the absence of evidence that the payments were all payments of interest for the preceding three years.

2. SAME—CONTRACT—CONSTRUCTION.

Where the maker of a note, six months after date promised to pay to the payee $60 for value received "interest at 8 per cent. per annum," the maker only bound himself to pay interest at 8 per cent. per annum from the date of his default and not from the date of the note.

3. TRIAL—INSTRUCTIONS — APPLICABILITY TO PLEADINGS.

Where, in an action on a note, plaintiff cast the interest due up to December 10, 1899, and prayed judgment for interest from that date on the amount thus ascertained to be due, it was error for the court to instruct a verdict for plaintiff with interest from 1893, the date of the last payment indorsed on the note.

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Action by Ina M. Dunlap against Joseph H. Kelly. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. D. Steele, for appellant. Sangree & Bohling, for respondent.

ELLISON, J.

This action is based on a promissory note executed by defendant to the plaintiff. She recovered judgment in the trial court. The case was before us on another appeal. 105 Mo. App. 1, 78 S. W. 664. The note was made to the plaintiff. She indorsed it to another and he afterwards indorsed it back to her. These indorsements were alleged, but not proven, and on that account we remanded the cause for another trial. At the last trial, the court peremptorily instructed the jury to find for the plaintiff and a verdict for $113.56 was rendered on February 7, 1905. We regard that there were such irregularities and errors in the trial as require that the cause be again remanded. The note is as follows: "Sedalia, Mo., Dec. 10, 1890. Six months after date, I promise to pay to the order of Ina M. Dunlap, sixty ($60) dollars, for value received, Int. at 8 per cent. per annum. [Signed] Joseph H. Kelly." There was indorsed on the back thereof the following payments: "March 5th, 1892, $4.80. Oct. 12, 1892, $4.80. Dec. 11, 1893, $4.80." The petition alleges: "That said payments paid the interest on said note up to December 10, 1893; that all of said note, to wit, the sum of $60 is now due, owing and unpaid with interest thereon from Dec. 10, 1893, at the rate of 8 per cent. per annum, making the balance amount due, December 10, 1899, $88.80. Wherefore plaintiff asks judgment against the defendant for the sum of $88.80 with interest thereon at the rate of 8 per cent. per annum from Dec. 11, 1899, and the costs of this suit." The answer was a general denial.

The peremptory instruction referred to is as follows: "The court instructs the jury that under the pleadings and evidence in this case your verdict must be for the plaintiff, for the principal of the note sued on with 8 per cent. simple interest thereon from the 10th day of December, 1893, to date." There was no evidence to support the allegation that the payments were payments of interest for three years up to December 10, 1893. The evidence is silent whether they were payments for interest or on the principal. As a matter of fact, the payments exceed the interest up to December 10, 1893, and the court was not justified in assuming that they were payments of interest and that the whole of the principal was still due on December 10, 1893. Under the rule laid down for computing interest where there have been partial payments (Call v. Moll, 89 Mo. App. 386), it makes a difference in the amount due whether the payments are considered interest instead of principal; though such difference is very slight in this case. The instruction assumes that interest should run from date. But it will be noticed that the note does not specify that the interest shall run from that time. It merely reads, "int. at 8 per cent. per annum."

The time when interest should begin to run on an indebtedness, when it is not specifically stated, is frequently difficult to determine. It may, however, be said of indebtedness generally that, in the absence of an agreement to the contrary, it does not begin to bear interest until it is due. So, therefore, if a written obligation is silent as to the time when it will begin to draw interest, it will not do so until maturity. Miller v. Cavanaugh, 99 Ky. 377, 35 S. W. 920, 59 Am. St. Rep. 463. But, if the writing itself discloses an intention that interest shall begin with the date, it will do so. Thus, a note due three months after date for $1,500 "with interest at rate of 4 per cent. per annum," means from date. Dewey v. Bowman, 8 Cal. 145. To the same effect is Salazar v. Taylor, 18 Colo. 538, 33 Pac. 369, and Campbell Printing Press & Mfg. Co. v. Jones, 79...