Furstenfeld v. Furstenfeld

• Decision Date: 24 October 1910
• Citation: 131 S.W. 359,152 Mo. App. 726
• Parties: FURSTENFELD v. FURSTENFELD.
• Court: Missouri Court of Appeals

131 S.W. 359

152 Mo. App. 726

FURSTENFELD v. FURSTENFELD.

St. Louis Court of Appeals. Missouri.

October 24, 1910.

1. BILLS AND NOTES (§ 129) — CONSTRUCTION — TIME OF PAYMENT.

Where the time of payment is left blank in a note, and no time is specified as to when it shall mature, it becomes due only on demand.

2. INTEREST (§ 37) — CONSTRUCTION.

A note stated no time for payment or maturity, and the blank for the rate of interest was also left blank. In the line below, a blank which should have been filled with the letter "I" was filled with the figure "8," so that it read: "If this note is not paid when due `8' agree to pay all reasonable costs of collection." Held, that the note could not be construed as intended to bear interest at 8 per cent., and was only entitled to 6 per cent. after demand.

3. PLEADING (§ 127) — ADMISSION — ANSWER.

A petition on a note alleged that defendant promised to pay plaintiff $250 with interest at 8 per cent. The note was filed with the petition as an exhibit. Defendant by answer admitted that he executed the note described in the petition, and then pleaded payment. The note so filed as an exhibit was blank as to the rate of interest and as to the time of payment. Held, that defendant's admission did not constitute an admission of the execution of an instrument agreeing to pay 8 per cent. interest, especially when plaintiff did not rely on the admission but introduced the note to prove his cause of action.

4. APPEAL AND ERROR (§ 1018) — REVIEW — FINDINGS OF REFEREE.

Findings of a referee in an action of law are regarded on appeal as a special verdict, and will not be disturbed if there is substantial evidence to support them.

5. APPEAL AND ERROR (§ 695) — REVIEW — REFEREE'S FINDINGS.

Where an appeal is prosecuted on the short form as authorized by Rev. St. 1909, § 2048 (Ann. St. 1906, p. 1354), appellant is bound to print all the evidence in order to procure a review of the sufficiency of the evidence to support the findings of a referee which have been adopted by the court and affirmed by the trial court.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Christian Furstenfeld against Valentine Furstenfeld. Judgment for defendant, and plaintiff appeals. Affirmed.

W. H. Clopton, for appellant. George S. Grover, for respondent.

NORTONI, J.

This is a suit on two promissory notes and an account. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

The petition is in three counts. The first declares upon a promissory note executed by defendant February 21, 1899, for the principal sum of $250. The second declares upon a promissory note, executed by defendant on February 7, 1901, for the principal sum of $200. The third declares upon an account for board and lodging, and prays judgment therefor in the amount of $1,484. In his answer defendant admitted the execution of the notes mentioned in the first and second counts of the petition, and pleaded that the same had been fully paid and discharged. The answer also contains a counterclaim to the effect substantially that during the years plaintiff is alleged in the petition to have boarded and lodged with plaintiff he contributed to the support of plaintiff's family at his instance and request, and paid out various sums of money for him. It is averred in the counterclaim that during the years defendant, who is plaintiff's son and was sui juris, lived and boarded with plaintiff, he did so under an agreement then made between the parties by which he expended from time to time large sums of money in the support of his father and his father's family, paid numerous bills for plaintiff, etc., on account of all of which defendant prays judgment against plaintiff on his counterclaim for $10,000.

It appearing from the pleadings that the case involved a long account, it was referred by the court to Perry Post Taylor, Esq., a member of the St. Louis bar, who heard the evidence and made what appears to be a careful finding of fact and a complete report of the same, together with recommendations as to such judgment the court should give with respect to the various items involved. The evidence in the cause is not sufficiently set forth in the abstract of appellant to enlighten the court on all of the points suggested. But the first and principal argument relied upon for a reversal of the judgment may be properly considered, for it relates to an interpretation of the pleadings and the construction of a writing in evidence; that is to say, the note sued upon in the first count of the petition. The note mentioned was introduced in evidence by plaintiff, and, being incorporated in the referee's report, is before us for review. The note referred to is as follows: "$250.00. February 21, 1899. After date for value received ____ promise to pay to C. Furstenfeld or order two hundred and fifty dollars payable at ____ with interest payable annually at the rate of ____ per cent. per annum ____ until paid. Interest when due to become principal and draw ____ per cent. interest. If this note is not paid when due 8 agree to pay all reasonable costs of collection including attorney's fees and also consent that judgment may be entered for these amounts by any justice of the peace. V. Furstenfeld." By scrutinizing the note, it appears that though it is dated February 21, 1899, no date is mentioned therein as to when it should fall due, and it appears to stipulate no particular rate of interest. That defendant executed the note involved is conceded, and the referee so found the fact, for he recommended judgment against defendant for the face of the note, $250, together with interest thereon at the rate of 6 per cent. from the date of filing the petition, which is treated as a demand for payment. It is said there was no evidence in the case that a demand was made before the petition was filed. In the circuit court defendant filed exceptions to the referee's report, and one of them relates to the matter now under consideration. The exceptions were overruled, and the finding and recommendation of the referee were affirmed to the effect plaintiff should recover of defendant the amount of the note, together with interest at 6 per cent. from the date of filing the petition. But the finding on defendant's counterclaim was for him in an amount sufficient to extinguish all indebtedness to plaintiff and for a small balance as well.

It is argued there appears in the judgment an erroneous conclusion of law on the face of the instrument for the reason, no date having been mentioned when the note should fall due, it became due the day it was executed, and drew interest accordingly. There can be no doubt under our statute that on contracts for the payment of money when no rate of interest is mentioned interest accrues at the rate of 6 per cent. after demand. But it is said all promissory notes afford interest after the date they become due, unless there is a stipulation therein to the contrary, and, as a matter of law, the note above described fell due the day of its date, February 21, 1899, for the reason no date of maturity was expressly specified therein. It is to be noted that as the note was executed February 21, 1899, the question is to be determined wholly irrespective of our negotiable instrument law of 1905, with which we are wholly unconcerned for the purposes of the case. Plaintiff cites and relies upon the case of Mason v. Patton, 1 Mo. 279, which seems to support the conclusion that a note which omits to specify a date of maturity falls due on the date it is made; but, be this as it may, if such were the law in the early history of the state, the rule no longer obtains, for the same...