Mastin v. Branham

• Decision Date: 31 October 1885
• Citation: 86 Mo. 643
• Parties: MASTIN et al. v. BRANHAM, Appellant.
• Court: Missouri Supreme Court

86 Mo. 643

MASTIN et al.

v.BRANHAM, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Circuit Court.--HON. T. A. GILL, Judge.

AFFIRMED.

Tomlinson & Ross for appellant.

(1) It is not necessary that the acknowledgement of indebtedness, to be sufficient to take a debt out of the operation of the statute of limitations, should contain a promise to pay the debt. It is only necessary that the indebtedness be acknowledged, and that the acknowledgment be not accompanied by a promise or condition unfulfilled, or anything calculated to rebut a presumption that the party is willing to pay the debt. R. S., sec. 3248; Bell v. Morrison, 1 Peters, 362; Boyd, Adm'r of Carr, v. Hurlbut, Adm'x of Hurlbut, 41 Mo. 264; Chambers v. Rubey, 47 Mo. 99. (2) An acknowledgment made to the creditor, or to his agent, or to a person in interest, or to a third party with the intention or purpose of having said acknowledgment acted upon, is sufficient. Dinguid v. Schoolfield, 32 Gratt. (Va.) 803; Rogers v. Southern, 4 Baxter (Tenn.) 67; Palmer v. Butler, 36 Iowa, 576; Stuart v. Foster, 18 Abb. (N. Y.) Pr. 305. (3) An acknowledgment of indebtedness is sufficient, even though it do not refer in express terms to the debt in question, provided reference to such debt were actually intended; and the burden of proving that the acknowledgment did not refer to such debt is on the debtor. Warlick v. Peterson, 58 Mo. 408. (4) An acknowledgment made before the bar of the statute has attached, is sufficient to keep the remedy in existence for the statutory period, counted from the date of said acknowledgment. Scott v. Ware, 64 Ala. 174; Patton v. Hassinger, 69 Pa. St. 305; Carlton v. Ludlow Woolen Mill, 27 Vt. 496; Craig v. Callaway County Court, 12 Mo. 94; Inhabitants of Bridgeton v. Jones et al., 34 Mo. 471.

Fox & Jones for respondent.

NORTON, J.

The action was begun on September 6, 1882. The cause of action is a promissory note, of which the following is a copy:

“3,000.00.

KANSAS CITY, MO., Nov. 25, 1868.

Four months after date I promise to pay to the order of John S. Branham three thousand dollars, without defalcation, value received, payable at the banking house of John J. Mastin & Co., in Kansas City, Missouri, with interest at the rate of ten per cent. per annum from maturity until paid.

(Signed)

W. I. HAMILTON.”

The note was endorsed by Branham; a waiver of protest signed by him was written on the back; also “Int. pd. Time extended to May 28, '69. J. J. M. & Co.” The plaintiffs, respondents here, among other things, allege in their petition that within ten years prior to the date of the bringing of this suit, the defendant, by writing signed by him, acknowledged the indebtedness evidenced by said note. This is denied in defendant's answer and the bar of the statute of limitations pleaded. Trial by court without a jury.

To sustain the allegation that defendant, by a writing signed by him, had acknowledged the debt, plaintiffs offered in evidence a copy of part of an application for life insurance in the Connecticut Mutual Life Insurance Company, in words and figures as follows: “Application for insurance in the Connecticut Mutual Life Insurance Company of Hartford, Connecticut. 1. Name of the person whose life is proposed for insurance. (Write name in full) John S. Branham. 2. How much insurance is desired? Ans. $4,000.00. 17. For whose benefit is this insurance effected? Ans. John J. Mastin & Co. Relationship to the life insured? Creditor. It is hereby declared and warranted that the above are fair and true answers to the foregoing questions, and that no statements respecting the physical condition, habits, personal or family history of the person whose life is proposed for insurance, other than those above made, have been made to any agent, solicitor, examiner, or other person in behalf of the company, and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be in any of the answers herein made, any untrue or evasive statements, or any misrepresentations or concealments of facts, then any policy granted upon this application shall be null and void, and all payments made thereon shall be forfeited to the company; and it is further declared by the undersigned that the party making this application has an insurable interest in the life above proposed for insurance, to the full amount above applied for. Dated at Kansas City, Missouri, this eighteenth day of November, 1872. Signature of the person or persons for whose benefit the insurance is to be effected. (Write the name in full) John J. Mastin & Co. Signature of the person whose life is proposed for insurance. (Write the name in full) John S. Branham.”

It was admitted by counsel for plaintiffs that the original of the above paper is, and has been ever since made, in the possession and under the control of the Connecticut Mutual Life Insurance Company, and defendant's counsel thereupon objected to the introduction of said copy in evidence, because the paper is not, nor does it contain a statement or acknowledgment made by defendant to plaintiffs, or either of them, nor does it contain any promise or acknowledgment of indebtedness sufficient to take the case out of the operation of the statute of limitations. The court admitted the paper in evidence and defendant duly excepted to the ruling of the court.

Counsel then agreed upon the following matters of fact: A policy of insurance was issued on said application, insuring the life of said Branham for the benefit of John J. Mastin & Company, creditors, as their interest may appear. Said policy was surrendered by Branham and John J. Mastin & Company to the insurance company, January 30, 1882, and a full paid up policy for $733 in lieu thereof, written by the company on the life of said Branham, and payable to John J. Mastin & Company, as their interest may appear. Said last mentioned policy was dated February 3, 1882, and was delivered by said company to John J. Mastin & Company.

John J. Mastin then testified as follows: “When the note sued on was executed, the firm of John J. Mastin & Company was composed of John J. Mastin and Thomas H. Mastin. We were unable to make anything out of Hamilton, the maker of the note, and supposed him to be insolvent. The indebtedness referred to in the application for insurance was their note, upon which Branham was endorser, for Branham did not owe us then any other debt. I do not recollect the circumstances of making out the original application, except in a general way. I presume I suggested the matter to Branham, and that he and I made out the application in my office, in the presence of some agent of the insurance company, and handed it to the agent there. That would be the usual way. John J. Mastin & Company always paid the premiums when they became due, on the policy issued upon that application. When the old policy was given up, the new paid up policy for $733 was given us in lieu of the old one, and is in my possession.”

Defendant offered no evidence, and the court entered up judgment for plaintiffs, after refusing the following instructions asked by the defendant:

“1. The application for insurance in evidence is not an acknowledgment of indebtedness sufficient to remove the bar of the statute of limitations, or to take this case out of the operation of the statute, because there cannot be found in it (said application) an unqualified and direct admission of a debt subsisting when said application was made, on which defendant in said...