Fowler v. Sone

• Citation: 226 S.W. 995
• Decision Date: 29 November 1920
• Docket Number: No. 13759.,13759.
• Parties: FOWLER v. SONE et al.
• Court: Court of Appeal of Missouri (US)

226 S.W. 995

FOWLER v. SONE et al.

No. 13759.

Kansas City Court of Appeals. Missouri.

November 29, 1920.

Appeal from Circuit Court, Cole County; John G. Slate, Judge.

"Not to be officially published."

Action by Richard D. Fowler, administrator of estate of Green C. Fowler, against S. H. Sone and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Irwin & Haley, of Jefferson City, for appellants.

Pope & Lohman, of Jefferson City, for respondent.

TRIMBLE, J.

This is' a suit on a promissory note for $250 dated January 22, 1901, due six months after date, bearing 8 per cent, compound interest from date until paid, payable to Green C. Fowler and signed by the defendants S. H. Sone, R. P. Stone, and W. H. Leslie. Plaintiff is the administrator of the payee's estate.

Said note bore the following credits: January 27, 1902, $10; June 3, 1907 $50; March 30, 1909, $21.50. Suit was brought March 21, 1919. The defendants set up the statute of limitations. The note fell due July 22, 1901, and, without payments thereon, it would have become barred July 22, 1911. However, the two credits of January 27, 1902, and June 3, 1907, are not questioned or disputed. They were credits properly given of payments made by the defendant S. H. Sone, and he so testified. These payments had the effect of giving the note another ten years of life, or until June 3, 1917. The payment, if made as shown by the credit of March 30, 1909, would extend the life of the note beyond the date on which suit is brought. If such payment is not established, the note is barred. The credit of March 30, 1909, if made at that time, is within the first ten years of the life of the note as drawn, and some eight years before the expiration of the life granted to the note by the conceded payments. Consequently, if made by the owner while the note was thus alive, the credit was against his interest. The evidence is that all of the credits, including the one of March 30, 1909, are in the handwriting of the payee; and, while no one expressly swears that this last-named credit was made on that precise date, yet it was manifestly about that time, for defendant S. H. Sone, in testifying in reference to it, said the payee, Fowler, collected a judgment owned by the witness and Fowler and the latter credited one-half thereof, or $21.50, on the note; and that Fowler told him of it some ten days or two weeks thereafter. Clearly this testimony referred to the time as shown by the credit. We do not understand, however, that any claim is urged that there was no showing as to when the credit was made. If there is, then we are of the opinion that the sum, substance, and effect of Sone's evidence is that the credit was made at the time it purports to have been made. Beyond question, according to the evidence, the credit was placed thereon while the note was yet alive, and, this being shown, it will be presumed that it was credited thereon on the date it bears. Hay v. McConnell, 179 Mo. App. 400, 404, 165 S. W. 394. If the owner of the note made the credit while the note was still alive, then it was against his interest, and, if nothing to the contrary appears, it will be presumed that the payment represented by the credit was made by the makers or one of them. Wester v. Wester, 189 S. W. 608; Berryman v. Becker, 173 Mo. App. 346, 355, 158 S. W. 899; Ray v. McConnell, 179 MO. App. 400, 403, 165 S. W. 394; Goddard v. Williamson, 72 Mo. 131, 133.

But it is urged that the evidence which shows the above facts also shows that the credit of March 30, 1909, was made without the consent or authority of said S. H. Sone. As shown above, said Sone and Fowler had a judgment on another. Fowler collected same and applied Sone's half thereof, $21.50, on the note as the credit in question. Some ten days or two weeks thereafter, Fowler told Sone of having credited the said sum on the note. Sone said to Fowler:

"Judge, I never intended to pay — T, am sorry you done that. I never intended to pay anything more on this note."

He further testified that —

He told Fowler he "had paid the other note; there were two notes given, one for $150 and the other $250, and I said, I paid the other note off of $150, and I paid all that has been paid on this, and I did not intend to pay any more on this note."

This is all he said to Fowler. He admits he never asked Fowler for the money.

While this shows that, at the time Fowler credited the note, he had no authority to do so from Sone, yet the latter was told of it in a few days and acquiesced in it. It is true he did so rather regretfully, but nevertheless he acquiesced. He had made the other two payments, and, having done so, had not intended to pay any more and was sorry this further payment was coming out of his pocket, but there is not a word indicating his refusal to allow the credit to go as it had been made. If he had withheld his...