Green v. Boothe

• Decision Date: 30 April 1945
• Citation: 188 S.W.2d 84,239 Mo.App. 73
• Parties: Nina K. Green v. Wilkes E. Boothe and Mamie B. Boothe
• Court: Kansas Court of Appeals

188 S.W.2d 84

239 Mo.App. 73

Nina K. Green v. Wilkes E. Boothe and Mamie B. Boothe

Court of Appeals of Missouri, Kansas City

April 30, 1945

Appeal from Circuit Court of Jackson County; Hon. Emory H. Wright Judge.

Affirmed.

Jay L. Oldham for appellant.

(1) Part payment of an undisputed debt will not discharge the whole, as it is without consideration. Winter v. K. C Cable Ry. Co., 160 Mo. 159-182; Wayland v Pendleton, 337 Mo. 190, 85 S.W.2d 492-494; Presbyterian et al. v. Fitterling, 342 Mo. 299, 114 S.W.2d 1004-1008. Where an undisputed indebtedness is past due, an extension agreement as to the time of payment is without consideration and not binding. Regan v. Williams, 185 Mo. 620-628, 84 S.W. 950. Voluntary payments made on past due promissory notes, with knowledge of all the facts, are admissions by the makers that the debts are due, which raise new promises by implication to pay the balance of notes. Meffert v. Lawson, Executor, et al., 289 Mo. 337-360, 233 S.W. 31-38; Mo. Interstate Paper Co. v. Gresham, 233 Mo.App. 5, 116 S.W.2d 228-229; Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214-218. Payments by the makers of past due promissory notes, made with knowledge of all the facts, but with the mistaken belief, as to the legality of their written extension agreements, providing for the reduction in the amounts and extension of time of their notes are voluntary and toll the statute of limitations. Inhabitants of Shell City v. Rumsey Mfg. Co., 39 Mo.App. 264-268; State ex rel. Sanborn v. Stonestreet, 92 Mo.App. 214-220; Home Coal Co. v. City of Macon, 216 Mo.App. 590-596, 262 S.W. 59-61. (2) The court erred in giving respondents' requested instruction No. C, because it is ambiguous, confusing and misleading. Draper v. Louisville & N. R. Co., 348 Mo. 886-893, 156 S.W.2d 626-630. (3) The court erred in giving respondents' requested instruction No. D, because it cast upon appellant the burden of proof that action did not accrue more than the statutory time prior to commencement of the action, which rests upon respondents, who pled the statute of limitations. Johnston v. Ragan, 265 Mo. 420-447, 178 S.W. 159-166; Wahl v. Cunningham et al., 320 Mo. 57, 6 S.W.2d 576-580; Campbell v. Terminal R. R. Assoc. of St. Louis, 126 S.W.2d 915-918.

W. F. Wilkinson and W. Raleigh Gough for respondents.

(1) The burden of pleading and proof was upon the plaintiff in order to avoid the bar of the statute of limitations. Burrus v. Cook, 117 Mo.App. 385, l. c. 400, 93 S.W. 888; Id., 215 Mo. 496, 114 S.W. 1065; Dennig v. Meekfessel, 303 Mo. 525, 261 S.W. 55; Kerber v. Rowe, 348 Mo. 1125, 156 S.W.2d 925, 929 (7); Bennett v. Metropolis Pub. Co. (Mo. App.), 148 S.W.2d 109, 110 (2); Arthur L. Hardin Associates v. Jennings Dist., etc. (Mo. App.), 176 S.W.2d 652, 653 (1); City of St. Joseph v. Wyatt, 274 Mo. 566, 203 S.W. 819, 820 (1); Berryman v. Becker, 173 Mo.App. 346, 158 S.W. 899, 901 (4); Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 93 (8); Coleman v. Kansas City, 351 Mo. 254, 173 S.W.2d 572, 578 (11); Regan v. Williams, 185 Mo. 620, 631, 84 S.W. 950; Missouri Interstate Paper Co. v. Gresham, 223 Mo.App. 5, 116 S.W.2d 228, 229. (2) Payments made by defendants, were not made with the intention of promising, to pay the balance of the notes -- according to their original tenor and effect -- so such payments did not prevent the running of the statute. 37 C. J. 1146-1148 (Sec. 626); Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214, 218 (10); Wells v. Hargrove, 117 Mo. 563, 568-570, 23 S.W. 885; 1 Wood on Limitations, Sec. 68, p. 183; Cochrane v. Cott, 156 Mo.App. 663, 138 S.W. 46, 37 C. J. 1104-1106 (Sec. 573); Chambers v. Rubey, 47 Mo. 99. (3) Plaintiff waived the error in the overruling of her requested peremptory instruction by asking and receiving her instruction No. 3, which submitted to the jury the question whether the payment, extended the period of limitations. Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307, 308-309 (2); Fawkes v. Natl. Refining Co., 341 Mo. 630, 638, 108 S.W.2d 7, 11 (10); John Deere Plow Co. v. Cooper, 230 Mo.App. 167, 174, 91 S.W.2d 145, 149 (4); Wissmann v. Pearline (Mo. App.), 135 S.W.2d 1, 4 (1). (4) Any alleged error in such instruction was harmless, because defendants were entitled to a demurrer to the evidence. Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214, 218 (9, 10); Regan v. Williams, 185 Mo. 620, 631, 84 S.W. 950; Meffert v. Lawson, 289 Mo. 337, 233 S.W. 31, 38; Missouri Interstate Paper Co. v. Gresham, 223 Mo.App. 5, 116 S.W.2d 228, 229; Chambers v. Rubey, 47 Mo. 99. (5) Defendants' Instruction No. D properly placed the burden of proof upon plaintiff to show that the payment of September 17, 1937, prevented the bar of the statute. Regan v. Williams, 185 Mo. 620, 631, 84 S.W. 950.

Bland, P. J. Cave, J., concurs; Dew, J., dissents.

OPINION

BLAND

This is an action, instituted on August 17, 1943, in two counts; each upon a promissory note in the sum of $ 4000, executed by the defendants, in favor of A. M. Robertson, and now held by the plaintiff. There was a verdict and judgment in favor of defendants. Plaintiff has appealed.

The petition alleges that the notes in question were dated August 2nd, 1926, and that each provided that it should bear interest at the rate of 6% per annum, payable in monthly installments of $ 75, until August 2nd, 1931, when the balance of $ 250 be paid; that the notes bore interest after maturity at the rate of 8% per annum; that they had been indorsed and transferred first to George F. Green and then to the plaintiff; that the defendants had made payments on the notes to September 17, 1937; that the balance of the principal and interest due on each of said notes was $ 1066.42.

The answer to each count consists of a general denial and a plea of the 10 year statute of limitation. Plaintiff's reply is a general denial.

The notes were secured by a second deed of trust on certain real property in Kansas City. During the time that the notes were owned by George F. Green the Traders Gate City National Bank of Kansas City held them as collateral security for an indebtedness owed by him to it. The cashier collected some of the payments indorsed on the notes. There are indorsements on both notes showing various payments, the last of which is dated December 14, 1932. After applying the credits shown by these indorsements, there was due, upon the principal of each note, the sum of $ 1062.72, as of December 14, 1932, plus interest from said date. Each note bears the indorsement of A. M. Robertson and George Fuller Green.

The defendant, Mamie B. Boothe, testified that she knew nothing about the transactions mentioned in the evidence; that she left the handling of all transactions to her husband, the defendant, Wilkes E. Boothe.

Wilkes E. Boothe testified that, after the notes had been reduced to approximately $ 1000 each in 1932, he made no further payments thereon for several years; that he did not consider the real estate on which the second deed of trust was given to be worth the amount of the first and second mortgages thereon and the delinquent taxes; that when the cashier of the bank requested payment from him on said notes he told him that he did not care to make further payments because of these facts; that the cashier told him that "they" would reduce the amount of the indebtedness and the rate of interest if the witness would make further payments; that, thereafter, the cashier submitted to him two extension agreements, which he and his wife signed.

Each of the extension agreements recites that there was due a balance of $ 1060.72 as principal on each of the notes; that the consent of George F. Green had been obtained "to this extension agreement" and for a consideration of One Dollar, and other valuable consideration, the "principal amount of said note . . . is hereby reduced . . . from the sum of One Thousand Sixty Dollars and Seventy-two Cents . . . to the sum of Five Hundred Dollars," which the defendants agree to pay "as extended," in monthly installments of $ 5.00, including interest at the rate of 4% beginning September 19, 1937 for a period of one year, and to increase the amount of the installments thereafter, until July 19, 1942, at which time the entire balance was to be paid. They also recite:

"It is hereby agreed and declared, that in default of the punctual payments of principal and interest under said extension agreement herein nothing herein contained shall waive or annul the provisions of said second deed of trust that said property may be advertised and sold, and it is further agreed and declared that the same may be so advertised and sold in the manner provided in said second deed of trust."

(Each of these agreements is headed "extension Agreement," although it is quite apparent that they are not such in the sense that the term "extension agreement" is ordinarily used, as they do not purport to extend the original indebtedness but are new and independent contracts providing for the payment of a new indebtedness in different amounts, bearing a different rate of interest, and otherwise differing in terms. However, for convenience, we will hereinafter refer to them as the Extension Agreements.)

The defendant, Wilkes E. Boothe, testified that after the Extension Agreements were executed he paid the cashier the sum of $ 10 and the latter made the indorsements that appear on the Extension Agreements; that he did not say anything to the cashier at the time he made the payment. Over the objection of plaintiff, defendant was allowed to testify that he "understood" that such payment was to be credited on the "Extension Agreements" and that he would not have made a payment except for his understanding that the amounts of the indebtedness under said notes...