Krause v. Spurgeon

• Decision Date: 07 December 1923
• Docket Number: No. 3395.,3395.
• Parties: KRAUSE et al. v. SPURGEON.
• Court: Missouri Court of Appeals

256 S.W. 1072

KRAUSE et al. v. SPURGEON.

No. 3395.

Springfield Court of Appeals, Missouri.

December 7, 1923.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by W. L. Krause and others against Andy Spurgeon. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

O. J. Stewart, of Jake Prairie, Frank H. Farris, of Rolla, and A. H. Harrison, of Steelville, for appellant.

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

BRADLEY, J.

This is an action on a promissory note commenced in a justice of the peace court. The cause was appealed to the circuit court, and thereupon trial before the court and a jury judgment went for plaintiffs, and defendant appealed.

The note, for $52, was dated December 13, 1910, due one day after date and bore a credit of $22.50 under date of January 18, 1912. There were no formal pleadings, but it appears that the defense was payment. Defendant contended that he had paid $50, while plaintiffs contended that only $22.50 was paid. Defendant made tender of $2, plus interest to avoid costs.

Defendant complains of the exclusion of evidence. He testified that in January, 1912, he paid to Henry Scheel, one of the plaintiffs, the sum of $50 on the note, and understood that the note was paid in full; that in five or six years thereafter plaintiff Krause wrote him a letter demanding the balance of $2 plus the interest. Defendant says that he read this letter, which he testified was lost, in the presence of John Spurgeon. At the trial defendant sought to prove the contents of the letter by the witness, John Spurgeon, and this evidence was excluded. We think the exclusion was proper. Such offered evidence was purely hearsay, and has no higher standing than if defendant had told the witness the contents of the letter instead of reading it in his presence. Defendant cites Matthews v. Coulter, 9 Mo. 705, to support his contention that this offered evidence was competent. That case is not in point, and does not support defendant's contention.

Defendant contends that plaintiffs were not partners, and as such the owners of the note sued on, and that such being the case they cannot maintain a joint suit. It developed in the evidence that plaintiffs did not have an equal interest in the note, but the note was made payable to plaintiffs jointly, and they were interested in the subject of the action, and in the relief demanded, and were properly joined in the suit. Section 1157, R. S. 1919.

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,...