Locke v. Warden

• Decision Date: 03 April 1944
• Docket Number: No. 20414.,20414.
• Citation: 179 S.W.2d 624
• Parties: LOCKE v. WARDEN.
• Court: Missouri Court of Appeals

179 S.W.2d 624

LOCKE v. WARDEN.

No. 20414.

Kansas City Court of Appeals. Missouri.

April 3, 1944.

Appeal from Circuit Court, Callaway County; W. M. Dinwiddie, Judge.

"Not to be published in State Reports."

Suit by E. R. Locke against Hubert P. Warden on a promissory note. From a judgment for defendant, the plaintiff appeals.

Judgment affirmed.

David H. Robertson, of Mexico, and Baker & Baker, of Fulton, for appellant.

Rodgers, Buffington & Adams, of Mexico, and T. A. Faucett, of Fulton, for respondent.

CAVE, Judge.

This is a suit on a promissory note against one of the makers. The appeal is from a judgment of the circuit court of Callaway County on a directed verdict for defendant at the close of plaintiff's evidence.

The suit was commenced in the Audrain County Circuit Court on July 8, 1940, on plaintiff's first amended petition. A trial was had in that court on November 15, 1940, before the court sitting as a jury and at the close of plaintiff's evidence, an instruction in the nature of a demurrer was sustained and judgment rendered thereon. Appeal was taken to the St. Louis Court of Appeals where the judgment was reversed and the cause remanded for further proceedings. See Locke v. Warden, Mo.App., 162 S.W.2d 642.

Thereafter, it was suggested to the court that defendant had been declared a person of unsound mind and the court appointed George P. Adams as guardian ad litem, who subsequently appeared for the defendant. By stipulation the venue of the cause was changed to Callaway County where a trial was had after a second amended petition was filed. It alleged that the defendant and his wife executed a promissory note on October 20, 1921, payable six months after date to the Bank of Warren County, Missouri, in the sum of $2000, with interest at 8% per annum. That all interest was paid to and including June 3, 1922; and that on September 21, 1922, the Bank of Warren County sold said note for value and properly assigned and endorsed the same to the plaintiff. That thereafter, defendant paid plaintiff certain sums of money on certain specified dates as payment of principal and interest of said note. These payments were alleged to have been made during the years of 1926-29-31-32-35. That after giving credit therefor there was a balance due of $2859.87, together with 5% of the amount as attorneys' fees.

The answer was a general denial coupled with a plea that the note was barred by the ten year statute of limitations, and that the note had been paid. The reply was a general denial.

Appellant (plaintiff) charges that the court committed error; (a) in sustaining the demurrer at the close of plaintiff's evidence; (b) in excluding certain evidence; (c) and in refusing to permit the plaintiff to testify concerning certain facts.

The evidence discloses that the note sued on was originally given to the Bank of Warren County and that the same was properly sold and assigned to the plaintiff by the Bank on September 21, 1922. It was signed by the defendant and his wife, Alberta Warden, as makers, and on the back thereof by C. W. Warden, defendant's brother, and S. M. Locke, plaintiff's brother, as accommodation endorsers. The only credit entered on this note is a payment of $50 made by defendant on "May 20, 1926 as per letter to S. M. Locke." Who made that entry is not disclosed. Plaintiff alleges, and contends that the evidence shows, that other payments were made by the defendant for the purpose and with the intent that they be credited to the interest and principal of the note in suit.

The petition alleges five payments for various amounts on certain dates in 1929, but there is no evidence whatever in the record concerning those payments and no claim on this appeal that they should be credited to this note. Evidence was offered concerning two payments in 1929, one made on April 8 for $250, and the other on May 5, for $100. The evidence concerning these two payments is contained in a signed statement by defendant dated March 28, 1929, addressed to the plaintiff and in which he directed the plaintiff to credit those payments "upon note of approximately $2600, recently given by myself, my wife and C. W. Warden, my brother, as applying upon a debt which I have owed to S. M. Locke for many years. Said note having been endorsed by S. M. Locke and delivered to E. R. Locke for the purpose of liquidating certain indebtedness which the latter has incurred in behalf of said S. M. Locke. Also, I agree on July 1st to pay in full all of the indebtedness represented by this said note and the original obligation signed by the above parties for which the same was signed." It is clear from this statement that the defendant gave specific instructions upon what note these two payments were to be credited, which was a $2600 note "recently given" and therefore could not be the note sued on. It is also clear from that statement that the defendant knew the $2600 note, which he had given to S. M. Locke, had been assigned to plaintiff E. R. Locke, and that it was given to S. M. Locke to apply upon a debt which defendant had owed S. M. Locke for many years, and that the defendant considered himself obligated to pay the balance of "the original obligation signed by the above parties * * *." The $2600 note is not in evidence and the only testimony directly referring to it is contained in the above signed statement.

Plaintiff does not contend that the above two payments prevented the running of the Statute of Limitations before suit was filed but that such evidence was introduced to show that such payments were intended to apply on the debt evidenced by the note in suit. This is on the theory that the note in suit and the $2600 note referred to in the above letter represent the same debt or obligation.

The next payment claimed is evidenced by letter dated January 12, 1931, written by defendant to plaintiff, the material part of which is "* * * I am herewith sending to you a $100 draft * * * for credit somewhere on my obligation to you. When I see you at Mexico, you can tell me where the credit will be made." The next payment claimed is evidenced by letter of September 9, 1932, enclosing draft of $100, with directions to plaintiff to "please credit the note signed by my wife, brother and myself." That accurately describes the note of approximately $2600 mentioned in defendant's letter of March 28, supra.

The next payment which is relied on to prevent the running of the Statute of Limitations is for $220.90 paid on July 15, 1935. The evidence introduced to support the contention that this payment should be, and was intended to be made on the note in suit is supplied by a series of letters, the material part of which we will now notice. On December 12, 1934, defendant wrote plaintiff a letter in which he stated, "* * * about 13 years ago, I turned over to Sam a small paid up life policy written by some good company which you can find in the dust of his or your papers. On account of my age and its age, I think you could now get a few hundred dollars out of it and of course I would be glad to see you get and have this before you or I or both of us follow Sam over the river, as we soon will do, if you or Sam have not already sold it to the company, which I think is doubtful as they seemed not to be satisfied with the sufficiency of my assignment to Sam. But of course I'll gladly sign any papers they want signed for the above purpose." The person referred to as "Sam" is S. M. Locke. On June 24, 1935, defendant wrote plaintiff as follows: "Am sending this copy for your files. I thought it best not to go into detail in your statement as to our understanding per my receipt and statement to you dated May 10, 1935, as all that is none of his business — I mean the Life Insurance Co.'s business, and I think the statement is ample to cover all their request and desires." The above was written and signed on the back of a typewritten statement which was unsigned and which the court excluded, which ruling is assigned as error and will be later noted. On the same day, he wrote plaintiff another letter, the material part of which is: "Of course it is not sufficient for me to attempt to make explanations and apologies for not writing to you since my visit to you on May 10, 1935, and the turning over of a life insurance policy to me for collection under the terms of receipt of that date, * * * on May 15th, I wrote the company stating that I had the policy in my possession and wanted to get it turned in for its full cashable value. * * * In reply to this letter they wrote me under date of May 21st that the cash value of the policy on that date was $441.20. * * * They also wrote me that as I had written them, some years ago, an informal assignment of the policy to S. M. Locke, as security for a loan made by the Bank of Warren County, that in order to explain this matter and their records in payment of the policy to me they would prefer to have a statement from you in writing as to the passing of the policy into your hands, etc. No further correspondence on the subject has been had. * * * You fully understand, however, that I am collecting this policy, per terms of the memorandum receipt given to you on May 10th, and will at once remit to you half of the amount received, whatever this may be." The receipt referred to, dated May 10, 1935, is as follows: "Received of E. R. Locke insurance policy issued on my life by the Metropolitan Life Insurance Company, for the amount of $2500.00 payable to my wife, Alberta Warden, beneficiary, dated August 9, 1921. I hereby agree to take said policy for the purpose of having same cashed, and agree to remit to said E. R. Locke one-half of the proceeds derived from said policy. * * * This is a matter that is involved in correspondence relating to indebtedness due said E. R. Locke, growing out of certain transactions of S. M. Locke, years past." On July 12, 1935, defendant wrote plaintiff a letter, the pertinent...