Howe v. Mittelberg

• Decision Date: 11 November 1902
• Citation: 70 S.W. 396,96 Mo.App. 490
• Parties: JEPTHA D. HOWE, Respondent, v. ARTHUR MITTELBERG, Appellant
• Court: Missouri Court of Appeals

70 S.W. 396

96 Mo.App. 490

JEPTHA D. HOWE, Respondent, v. ARTHUR MITTELBERG, Appellant

Court of Appeals of Missouri, St. Louis

November 11, 1902

Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.

AFFIRMED.

Judgment affirmed.

Aug Rebenack and R. L. Johnston for appellant.

(1) The plaintiff is not the real party in interest and the contract sued on being a personal option can not be assigned. Sec 540, R. S. 1899. (2) If the writing without any other evidence shows a cause of action, the limitation is ten years, but if any other evidence than the writing has to be resorted to, to make out a case, the period is five years. Meneffe v. Arnold, 51 Mo. 536; Carr v. Thompson, 67 Mo. 472.

Alphonso Howe for respondent.

(1) Appellant raises, for the first time in this court, the point that the plaintiff is not the real party in interest. This is without merit. Besides, if there was any merit in it, he has waived it by not raising the objection in the trial court. R. S. 1889, sec. 602. (2) The law in this State is well settled that the assignee of a note or an account for collection may sue in his own name. Rogers v. Gosnell, 51 Mo. 466; Nicolay v. Fritschle, 40 Mo. 67; McComas v. Ins. Co., 56 Mo. 573.

GOODE, J. Bland, P. J., and Barclay, J., concur.

OPINION

GOODE, J.

--This action originated before a justice of the peace and is based on the following written contract:

"December 30, 1893.

"In consideration of the sum of $ 237.50, received this day of Selden P. Spencer, I have sold and do sell to him 250 shares of the capital stock, full paid and non-assessable in the St. Louis Mining and Milling Company of Montana and agree to buy back the said stock at its cost price and at any time on five days' notice after June 1, 1894, and before October 1, 1894.

"ARTHUR MITTELBERG.

"Sept. 29, 1894: Extended to Jan'y 1, 1895.

"A. M.

"Dec. 26, 1894. This guarantee is for the consideration extended until I have given a ten days' notice of my willingness to take the stock at the price paid. "ARTHUR MITTELBERG."

Before the expiration of the period originally limited in which Mittelberg was bound to take back the stock and repay Spencer its purchase price, the latter demanded that he take it back. Mittelberg was not ready to do so at that time and desired an extension of his obligation. Spencer told him there was no objection to extending it provided he (Mittelberg) would continue his liability to redeem, which Mittelberg was willing to do, but wanted an option himself to take up the stock when he chose. Spencer was willing to extend his liability to redeem, and Mittelberg was willing to extend his liability provided he might redeem at his pleasure, and so the clause below the original memorandum of the contract was appended on December 26, 1894.

This action was begun June 1, 1901, no further demand having been made by Spencer that Mittelberg repurchase the stock until three or four months before the suit was brought; nor in the meantime had Mittelberg given any notice that he wished to repurchase, and he refused to do so when Spencer made demand. The latter's claim was assigned for collection to Howe, the plaintiff, who brought suit in his own name for damages on account of Mittelberg's breach of the contract.

1. According to the Missouri decisions, Howe is the trustee of an express trust and as such has the right to maintain this action in his own name. Dean v. Chandler, 44 Mo.App. 338; Young v. Hudson, 99 Mo. 102, 12 S.W. 632; Guerney v. Moore, 131 Mo. 650, 32 S.W. 1132.

2. We have examined with some care the defense of the statute of limitations, based on the theory that the action was barred after five years; but have reached the conclusion that the case comes within the clause of the limitation law that no action shall be barred under ten years if it is founded on a writing, whether sealed or unsealed, for the payment of money or property. R. S. 1899, sec. 4272. That clause is unhappily phrased and has given the courts considerable perplexity. The expression "payment of money or property" is inexact, because the word "payment" conveys the idea of a money transaction. But doubts have chiefly arisen as to what writings ought to be interpreted to create obligations for the payment of money or property within the meaning of the statute.

It is settled that there must be a promise to pay (Menefee v. Arnold, 51 Mo. 536) and also settled that an implied promise is sufficient to put the case within the effect of the statute. Reyburn v. Casey, 29 Mo. 129; Moorman v. Sharp, 35 Mo. 283.

In Shelton v. Rodney, 1 Mo.App. 130, a letter acknowledging the receipt of sacks of wheat and reciting sales thereof with a statement that "account of sales will follow in due course" was held to be a writing for the payment of money within the meaning of the clause, on the authority of Reyburn v. Casey, supra, where it was said, "the broad and comprehensive language of the statute evidently embraces all kinds of written instruments without regard to their form and phraseology, which imply a promise or agreement to pay money, and is not restricted to such as have the requisites of promissory notes, or to such as contain an express promise or agreement upon...