Menefee v. Arnold
| Decision Date | 28 February 1873 |
| Parties | WM. P. MENEFEE, Respondent, v. MARK ARNOLD, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Linn County Court.
A. W. Mullins, and Geo. W. Easley, for Appellant.
The receipt in this case is not a promise to pay money.
In Reyburn vs. Casey, (29 Mo., 129) the court held that the fact that the receipt on its face acknowledged the receipt of the money for the plaintiff, implied a promise of payment. And in the case of Moorman vs. Sharp, (35 Mo., 283,) the writing contained a promise to account to the plaintiff for the money.
It will be observed in these cases that the promise to pay is either expressly contained in the writing, or is implied from the writing itself; while in the case at the bar, there is no promise of payment in the writing, nor can a promise of payment be implied from the writing alone.
In either of the cases above cited, a declaration simply on the writing would have stated a good cause of action, while such a declaration on the writing in the case at bar, would have stated no cause of action.
A. D. Christy, and G. D. Burgess, for Respondent.
Plaintiff's cause of action was not barred by the statute of limitations. It is governed by the first clause of the 9th section of the limitation act, and not by the provisions of the tenth section. (Reyburn vs. Casey, 31 Mo., 252; S. C., 29 Mo., 129; Kimball vs. Huntington, 10 Wendell, 675; Harrow vs. Dugan, 6 Dana, 341; Cummings vs. Freeman, 2 Humph., 144; Haines vs. Tharp, 15 Ohio, 132.)
The sole question in this case arises out of the statute of limitations. The action was commenced in 1871, by the plaintiff, to recover a certain amount of money, alleged to have been fraudulently obtained by the defendant. The petition stated in substance, that on the first day of June, 1860, judgment was rendered in the Circuit Court of Linn county, in favor of the Merchants' Bank of St. Louis, and against the plaintiff as principal, and Daniel Grant, T. T. Easley and the defendant, as sureties, for $1,006.08 and costs, and that execution was issued and placed in the hands of the sheriff, and that afterwards, on the 1st day of April, 1863, defendant falsely and fraudulently represented to plaintiff that he had paid off and fully satisfied said execution; upon which statement of defendant, plaintiff fully relied, and at the instance and request of plaintiff, one Richard C. Menefee, paid defendant $500, and took his receipt therefor, which receipt was afterwards assigned to plaintiffs. The petition then alleged that defendant's statements were untrue, and that he did not pay off the said judgment.
The defendant in his answer pleaded and relied on the statute of limitations. At the trial the only evidence offered by the plaintiff to sustain his action, was the following receipt: “Rec'd, Linneus, April 1st, 1863, from Richard C. Menefee, the sum of five hundred dollars, on account of moneys paid out by me for Wm. P. Menefee, and as surety for him, which moneys were paid Thomas M. Rooker, sheriff of Linn county, Mo., by me, on execution against me as such surety several years ago.”
MARK ARNOLD.
The assignment on the receipt was in these words: “For value received, I assign the within to W. P. Menefee, this 10th day of June, 1870.”
J. R. C. MENEFEE
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Bridges v. Stephens
...(Reyburn v. Casey (1860) 31 Mo. 252), in Moorman v. Sharp (1864) 35 Mo. 283, and in Shelton v. Wyman (1876) 1 Mo.App. 130. In Menefee v. Arnold (1873) 51 Mo. 536, it was that the implied promise must arise from the writing itself, and where it does not, but appears only from outside evidenc......
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State v. The St. Louis & San Francisco Railway Company
... ... obligation in favor of a plaintiff, then the period of five, ... and not the period of ten, is the limitation. Meneffee v ... Arnold, 51 Mo. 536; Carr v. Thompson, 67 Mo ... 472. (4) The defendant can set up the claim of the South ... Pacific against the state as a ... ...
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Parker-Washington Co. v. Dennison
...to be enforced does not fall within that category, the five-year statute applies to it. Carr v. Thompson, 67 Mo. 472; Menefee v. Arnold, 51 Mo. 536. (3) The nature of the action as well as the nature of the writing relied upon are both consequential in determining whether the five-year or t......
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Lehner v. Roth
... ... If any other evidence than ... the writing has to be resorted to to make out a case the ... period of limitation is five years. Menefee v ... Arnold, 51 Mo. 536; Carr v. Thompson, 67 Mo ... 476; Quattrochi v. Bank, 89 Mo.App. 509. (3) As ... bteween plaintiff and defendants the ... ...