Krause v. Spurgeon

• Decision Date: 06 July 1927
• Docket Number: No. 4209.,4209.
• Citation: 297 S.W. 434
• Parties: KRAUSE et al. v. SPURGEON.
• Court: Missouri Court of Appeals

297 S.W. 434

KRAUSE et al. v. SPURGEON.

No. 4209.

Springfield Court of Appeals, Missouri.

July 6, 1927.

Appeal from Circuit Court, Crawford County; W. E. Barton, Judge.

Action by W. C. Krause and others against Andy Spurgeon. Judgment for plaintiffs, and defendant appeals. Reversed.

O. J. Stewart, of Steelville, Johnston & Rinehart, of Rolla, and Harrison & Norvell. of Steelville, for appellant.

Harry Clymer, of Steelville, and Virginia S. Booth and James Booth, both of Pacific, for respondents.

BRADLEY, J.

This is a suit on a promissory note. Plaintiff recovered judgment, and defendant appealed.

The defense relied upon was payment and the statute of limitations. The trial was had before a jury, but the jury failed to agree. Thereafter it was agreed that the record as made at the trial be submitted to the court sitting as a jury. This was done, and the court found for plaintiffs. This is the second time this cause has reached this court. See Krause et al. v. Spurgeon, 256 S. W. 1072. We make reference to our former opinion for the facts underlying this cause, and will state in the course of this opinion such additional facts as may be necessary.

The note sued on was for $52, and was executed December 13, 1910, and was due one day after date. A credit of $22.50 was indorsed on the back of the note under date of January 18, 1912. The cause originated in a justice of the peace court, and was commenced January 12, 1922. Defendant filed no written pleadings. In the justice of the peace Court defendant's defense was payment. In the first trial in circuit court his defense was payment and the statute of limitations, but the defense of limitations in that trial was upon a different theory to that now presented. At the last trial in the circuit court, plaintiffs admitted that the payment of $22.50 indorsed on the note under date of January 18, 1912, was in fact made January 10, 1912. Under the admission made, it was 10 years and 2 days from the time of the payment on the note before the cause was commenced, and it was therefore barred under the statute. Section 1316, R. S. 1919. Plaintiff, after making the admission that the statute had run before the suit was commenced, proceeded on the theory that plaintiff had waived the right to rely upon the statute of limitations, and this was the theory upon which the court found for plaintiffs. Defendant offered evidence that he had paid all the note, except $2, but there was evidence to the contrary. The evidence in this record on the question of payment is substantially the same as stated in our former opinion.

The theory of limitations relied upon by defendant at the first trial in the circuit court is stated in Krause et al. v. Spurgeon, supra, as follows:

"Defendant contends that limitations had run, and that the court should have directed a verdict as requested. This contention is based on the following facts: The note was given in the first instance as a balance due on a wagon. Krause did the woodwork on the wagon, and his interest in the note, when made, was $29.50. Scheel Bros., blacksmiths, did the ironwork on the wagon, and their interest in the note when given was $22.50. Defendant made the payment on the note to Henry Scheel. Defendant says that he paid Scheel $50, while Scheel says the payment was $22.50. Henry Scheel says that he kept the $22.50 as Scheel Bros.' interest in the note, and that thereafter Scheel Bros. had no interest. If Scheel Bros. had no interest after January 18, 1912, defendant reasons, as we understand him, that limitations as to Krause began to run on the date of the note, and that, since suit was not filed until January 12, 1922, plaintiff Krause was barred. There was nothing on the face of the note to indicate that plaintiffs were not equally interested in the note, and nothing on the note in connection with the payment to indicate that the payment satisfied Scheel Bros' interest in the note.

"At the time the note was given, defendant was not advised that plaintiffs were not equally interested in the note, and there is no evidence that, when the payment was made, defendant was advised that he was paying Scheel Bros.' interest in full. All these were matters concerning plaintiffs, and which they would have to dispose of among themselves. Plaintiff Krause had possession of the note all the time, and when the payment was made January 18, 1912, Henry Scheel, to whom payment was made, reported the fact to Krause, and Krause placed the credit on the note, and knew, as would appear, at the time, that Scheel was retaining the payment as Scheel Bros.' interest in the note. We are of the opinion that limitation should be reckoned from the date of the payment. The disposition of the proceeds of the judgment, if one is finally obtained, does concern defendant...