Harris v. Stewart

• Decision Date: 03 July 1917
• Docket Number: No. 14664.,14664.
• Citation: 197 Mo. App. 489,196 S.W. 1033
• Parties: HARRIS v. STEWART et al.
• Court: Missouri Court of Appeals

196 S.W. 1033

197 Mo. App. 489

HARRIS v. STEWART et al.

No. 14664.

St. Louis Court of Appeals. Missouri.

July 3, 1917.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Suit by B. Marvin Harris, administrator of J. H. Patton, deceased, against A. W. Stewart and Henry T. Stewart. From a judgment for Henry T. Stewart, plaintiff appeals. Judgment reversed, and cause remanded.

Pearson & Pearson, of Louisiana, Mo., for appellant. Hostetter & Haley, of Bowling Green, for respondents.

BECKER, J.

Plaintiff, as administrator of the estate of J. H. Patton, deceased, instituted this suit in the circuit court of Pike county, Mo., against the defendants, A. W. Stewart and H. T. Stewart, as makers of a note dated February 25, 1892, for $253.45, payable to the order of J. H. Patton and W. H. Owen. Upon trial the court, a jury being waived, rendered a judgment against A. W. Stewart and in favor of the plaintiff in the sum of $706.85, the amount found due on said note, and rendered a judgment in favor of the defendant H. T. Stewart. From this judgment in favor of H. T. Stewart, the plaintiff appeals.

The undisputed facts in the case are that A. W. Stewart and H. T. Stewart are brothers, and that on February 25, 1892, they executed and delivered their joint note to J. H. Patton and W. H. Owen. The note is in words and figures as follows, to wit:

                "253.40.      Clarksville, Mo., Feb. 25, 1892
                

"Six months after date we promise to pay to the order of J. H. Patton & W. H. Owen two hundred and fifty three and 45/100 dollars, for value received, negotiable and payable without defalcation or discount, at the banking house of Clifford Banking Co., Clarksville, Mo., with interest at the rate of eight per cent. per annum from date, and if interest is not paid when due to become as principal and bear the same rate of

                interest.                A. W. Stewart
                                            "H. T. Stewart."
                

On the back of this note appear five indorsements, one of which indorsements has a line running through it, and for the purpose of this opinion it is not necessary that we take further notice thereof. The other four indorsements are as follows:

                "By cash, Int. to Feby. 25-93, and by
                  cash,                               $100.00
                "6-14-94. By check Elsberry,            15.00
                "By cash, May 28, 1904,                  5.00
                "By cash, Mar. 30th, 14 (Chk. A. W
                  Stewart),                             10.00
                            "Pearson & Pearson
                               "Attys. for J. H. Patton."
                

All of the payments on said note, as noted by the indorsements, were admitted as having been made, excepting the one alleged payment indorsed: "By cash, May 28, 1904, $5.00." It was plaintiff's contention that this payment was in point of fact made on the 28th day of May, 1904, in the sum of $5, by the defendant A. W. Stewart, and that payment was made by reason of the insistence of J. H. Patton, deceased, holder of the note, in order to prevent the running of the statute of limitations, and to relieve Patton of the necessity of instituting suit on the note.

Mr. Ras Pearson was the sole witness who testified with reference to the disputed $5 payment. He was the attorney for J. H. Patton during his lifetime, and as a witness for plaintiff testified to a conversation he had with defendant Henry T. Stewart as follows:

"We were discussing the reason for wanting another payment on the note or bringing suit to keep the statute of limitations from running, only had a short time, and he told me when the payment of $5 was made that Col. J. H. Patton went to A. W. Stewart, and he found him in a field down there, and that he told him he would have to have payment at that time or the note would run out or he would have to bring suit, and that A. W. Stewart had $5, and it was all that he had, and A. W. Stewart gave him the $5 to pay on that note to keep it alive and keep him from bringing suit at that time, and I said, `Now that payment was made under those circumstances and ten years more has nearly gone, and here we are still trying to do the same thing.'"

Pearson further testified:

That in the conversation he had with the defendant Henry T. Stewart the said defendant told him that "he knew that payment had been made, and that the Colonel (J. H. Patton) had told him that the payment of $5 had been made. Q. That the Colonel had told him that? A. Yes, sir. Q. And Henry's information as it came to you is based only on what Col. Patton said? Henry wasn't down in this field when Col. Patton claimed to you that he went down there and collected this $5 from A. W. Stewart? A. No, sir; he didn't say that Henry was with him, but the Colonel said, and so did Henry Stewart, that the Colonel was trying to collect it before that payment of $5 was made, and that payment of $5 was made by A. W. Stewart, and Mr. Stewart told me that he knew that payment had been made."

The court at the...