Locke v. Warden

• Decision Date: 02 June 1942
• Docket Number: No. 25877.,25877.
• Parties: LOCKE v. WARDEN.
• Court: Missouri Court of Appeals

162 S.W.2d 642

LOCKE v. WARDEN.

No. 25877.

St. Louis Court of Appeals. Missouri.

June 2, 1942.

Rehearing Denied June 19, 1942.

Appeal from Circuit Court, Audrain County; Frank Hollingsworth, Judge.

"Not to be reported in State Reports."

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

Reversed and remanded.

W. W. Botts, of Mexico, for appellant.

Rodgers, Buffington & Adams, of Mexico, for respondent.

SUTTON, Commissioner.

This is an action on a promissory note executed by defendant to the Bank of Warren County for the principal sum of $2,000, dated October 20, 1921, and made payable six months after date. The action was commenced in the Circuit Court of Audrain County on July 8, 1940. Endorsements on the note show that interest was paid on November 20, 1921, and on June 3, 1922. On September 21, 1922, the note was assigned by the bank to plaintiff. On May 20, 1926, a payment of fifty dollars was made on the note, which is shown by endorsement thereon. The sole defense to the action is the alleged bar of the ten-year statute of limitations. Mo. R.S.A. § 1013.

The cause was tried to the court sitting as a jury. At the conclusion of plaintiff's evidence in chief the court at the request of defendant gave a declaration of law in the nature of a demurrer to the evidence, and gave judgment for the defendant accordingly. Plaintiff appeals.

On January 1, 1921, defendant wrote the Warren County Bank a letter from Monroe, Louisiana, stating that he had a position with the claim department of the Missouri Pacific Railroad Company with headquarters in Louisiana, but that his permanent address was St. Louis, Missouri, 4183 Enright Avenue. On January 12, 1931, he wrote plaintiff a letter from Richland, Louisiana, with which he enclosed a draft for $100 "for credit somewhere on my obligation to you." There is in the letter language indicating that he was then residing in Louisiana.

Plaintiff testified that on August 10, 1937, defendant visited him at Mexico, Missouri, where he resided; that at his office in Mexico defendant's indebtedness to plaintiff was figured up between them and that the result of the calculation was shown on a paper designated in the record as exhibit F; that they finally came to an agreement that the amount was $1694.77, which was shown by figures on the paper designated as exhibit F; that they both figured up what he owed on the debt, that is, the amount that was due on the $2,000 note in suit. Exhibit F, which was introduced in evidence, shows debits and credits and a balance of $1694.77, and shows the following, which plaintiff testified was written on the exhibit by defendant: "August 10, 1937. O. K. I feel certain that Mr. Locke has figured above matters correctly. H. P. Warden." Otherwise it shows nothing but figures and dates. It does not designate any particular debt or note. Another note executed by defendant was put in evidence, designated in the record as exhibit G. This note was for $2,645.60. It was dated September 4, 1928, and fell due January 15, 1929. It appears that this note was given for the amount then due, including accrued interest, on the indebtedness evidenced by the note in suit, which is designated in the record as exhibit A.

Plaintiff testified that in the conference between him and defendant, on August 10, 1937, they had before them exhibit A, exhibit G, and a personal note of defendant's brother given in 1924 for the balance due on exhibit A, but that exhibit A was to be held as collateral for the brother's said personal note, and that they figured that the amount due on the three notes, on August 10, 1937, was $1,694.77. There were endorsed as credits on the note designated as exhibit G payments as follows: January 15, 1929, $225; February 8, 1929, $200; February 16, 1929, $100; May 8, 1929, $350; September 9, 1929, $400; December 15, 1929, $110; January 12, 1931, $100; September 9, 1932, $100; July 15, 1935, $220.90.

Plaintiff testified that he knew that defendant lived in Mexico, Missouri, and in that community for many years, and that he left there, but that he could not say just when; that he knew that defendant left this state and resided in Louisiana; that he visited him there twice; that he and his wife and brother were occupying a home there; that defendant was living there each time; that it was in 1935 that he saw him down there, living there. There was no evidence to show that he ever afterwards returned to reside in this state.

Plaintiff testified that the note designated as exhibit G was made after the note in suit, and that the note in suit was practically merged in the note designated as exhibit G.

While the evidence shows that plaintiff held two notes besides the one in suit, it is clear that there never was but one debt, and that is the debt evidenced by the note in suit. The note given by defendant's brother in 1924 was obviously given as security for the payment of the debt evidenced by the note in suit. Plaintiff testified that the note in suit was held as collateral for the brother's note, by which he evidently meant that the brother's note was not given in discharge of the note in suit, but that it was to continue in force and effect until the debt evidenced thereby was fully paid. So, also, the note designated as exhibit G was given for the balance then due on the note in suit. It was not given in discharge of the note in suit, but was given as fresh evidence of the amount then due on the note in suit. It is true plaintiff testified that the note in suit was practically merged in that note, but he, nevertheless, with the evident consent of defendant, held on to the note in suit, which strongly tends to show that the one was not given in discharge of the other, and the evidence otherwise shows that the parties regarded the notes as evidencing the same debt. It follows, therefore, that the payments endorsed as credits on exhibit G were in effect payments made on the debt evidenced by the note in suit, and were as effectual to interrupt the running of the statute of limitations against that note as if they had been endorsed as credits thereon.

There was evidence also, we think, tending to show that the nonresidence of the defendant was such as to save the note in suit from the bar of the statute of...