Miller v. Miller
| Decision Date | 03 February 1913 |
| Parties | JESSE U. MILLER, Appellant, v. BENJAMIN M. MILLER, Administrator, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Johnson Circuit Court.--Hon. A. A. Whitsitt, Judge.
REVERSED AND REMANDED (with directions).
J. W Suddath & Son for appellant.
(1) Statute of Limitations is not a statute of extinguishment but merely a statute of repose. Secs. 1887, 1888, R. S. 1909; McMerty v. Morrison, 62 Mo. 140; Boyce v Railroad, 168 Mo. 583; Cytron v. Transit Company, 205 Mo. 692; Cowan v. Mueller, 176 Mo. 192; 25 Cyc. 983, subdiv. "B." (2) Where defendant made payments without directing which item they were to be applied to, he is taken to have authorized plaintiff to apply the payment where it will best subserve his own interests. Shortridge v. Pardee, 2 Mo.App. 363; Beck v Haas. 31 Mo.App. 180; Beck v. Haas, 111 Mo 264; Middleton v. Frame, 21 Mo. 412; 18 Am. and Eng. Ency. Law (1 Ed.), 239; Waterman v. Younger, 49 Mo. 413; Genter v. Kemper, 58 Mo. 567. (3) It is not necessary for the plaintiff to prove both that the indorsements were made when they purport to be made and that the payment evidenced thereby was actually made by the defendant, proof of either the one or the other is sufficient. Gardener v. Early, 78 Mo.App. 351; Crow v. Crow, 124 Mo.App. 120; Regan v. Williams, 185 Mo. 620; Brown v. Carson, 132 Mo.App. 371. (4) Payment on a note after the bar of the statute has become complete will revive the cause of action upon the whole debt. Secs. 1909, 1910, 1911, R. S. 1909; Shannon v. Austin, 67 Mo. 485; Johnson v. Johnson, 81 Mo. 331; Bender v. Markle, 37 Mo.App. 234; Waltemar v. Schnick's Estate, 102 Mo.App. 133. (5) A check or draft received and cashed is presumed to be given in payment of a debt and not as a loan. Abbott's Trial Evidence, secs. 245, 803; Bunting v. Allen, 18 N. J. Law 299; Headley v. Reed, 2 Cal. 322; Ashley v. Vischer, 24 Cal. 322; Poucher v. Scott, 98 N.Y. 422.
James A. Kemper for respondent.
(1) To entitle plaintiff to recover herein, it must appear that the deceased made a payment of twenty-five dollars on the note sued on, as an appropriated payment; or that the indorsement or credit appearing thereon was made by the authority and with the knowledge and consent of the payor, intending thereby to revive the debt. Crow v. Crow, 124 Mo.App. 120; Brown v. Carson, 132 Mo.App. 376; Goddard v. Williamson, 72 Mo. 131; Regan v. Williamson, 88 Mo.App. 586; Regan v. Williamson, 186 Mo. 630; Loewer v. Haug, 20 Mo.App. 163; Phillips v. Mahan, 52 Mo. 197; Wilden v. McAllister, 91 Mo.App. 451; Gardner v. Early, 78 Mo.App. 346. (2) Plaintiff cannot recover herein unless it appears that the deceased made a payment of twenty-five dollars on said demand, intending thereby to revive the unpaid portion of said indebtedness. Compton v. Johnson, 19 Mo.App. 95; Regan v. Williamson, 88 Mo.App. 586; Regan v. Williamson, 185 Mo. 630; Wilden v. McAllister, 91 Mo.App. 451; 25 Cyc. 1373; Loewer v. Haug, 20 Mo.App. 163. (3) A payment on a barred debt does not rescue the debt from the bar of the Statute of Limitations, unless it was made with the knowledge and consent of the payor and with the intention and for the purpose of reviving and creating a new promise. 25 Cyc. 1373; Regan v. Williamson, 88 Mo.App. 586; Regan v. Williamson, 185 Mo. 630; Wilden v. McAllister, 91 Mo.App. 451; Murdock v. Woteman, 27 L. R. A. 418; Bender v. Blessing, 31 N.Y.S. 48. (4) A credit or indorsement placed on a note, after the completion of the bar of the Statute of Limitations is no evidence of payment and does not remove the bar of the statutes unless it be shown that it was placed there by the authority and consent of the maker, intending thereby to create a new debt or obligation. Craig v. Court, 12 Mo. 99; Phillips v. Mahan, 52 Mo. 197; Wells v. Hargrave, 117 Mo. 563; Regan v. Williamson, 88 Mo.App. 586; Regan v. Williamson, 185 Mo. 630; Wilden v. McAllister, 91 Mo.App. 451. (5) Statements by the decedent to any person, other than the holder of the debt or obligation, or his known agent, incompetent for any purpose whatever and should be excluded. Williamson v. Williamson, 50 Mo.App. 194; Brown v. Carson, 132 Mo.App. 371; 1 Beach on Contracts, p. 196, sec. 163. (6) The mere fact that the decedent sent a draft for the sum of twenty-five dollars to the claimant herein, nine years after the bar of the statute was complete against the note sued on, creates, no presumption of payment, in absence of any evidence showing that the same was made as such payment. The Statute of Limitations is not a statute of presumption, but one of repose. 3 Parsons on Contracts (7 Ed.), sec. 1, pp. 67 to 733. (7) Where two or more clear and undisputed debts exist, all of which are barred by the statute, and money is paid, but not appropriated to either debt by the debtor, the creditor cannot appropriate the payment, and thereby take the debt to which he applies it out of the statute. 3 Parsons on Contracts (7 Ed.), sec. 3, par. 76, p. 83; Pauly v. Williams, 1 Gray, 630; Heinlin v. Castro, 22 Cal. 100.
--Suit against the estate of Andrew S. Miller, deceased, on a note for $ 1258.25 dated February 23, 1892, due one day after date, payable to appellant with an alleged credit thereon of $ 25, March 8, 1910. The note was duly allowed by the probate court from which an appeal to the circuit court was taken by a daughter of the deceased, one of his heirs and creditors. In the latter forum a jury was waived and the case tried by the court.
Claimant and deceased were brothers. The genuineness of the note was not disputed. The signature was duly proved. The defense was limitations. On its face the note was barred but on the back was the following indorsement: "Received on the within note twenty-five (25) dollars, Mar. 8, 1910."
The evidence offered by appellant in support of this alleged indorsement consisted of testimony concerning declarations made by the deceased showing an intention on his part to pay appellant, and also evidence of the circumstances under which appellant received the $ 25 from the decedent. A sister of deceased testified that about four years or less before he died, she asked decedent to pay her husband the money, or some of the money, owing to him, and decedent replied that if he ever got any money he was going to pay his brother Jesse; since they could do without it easier than Jesse could. About a year and a half before he died, decedent told a neighbor, William Schunaman, that he owed Jesse considerable money and ought to pay it but added, "I ain't just got it to do it just now." Benjamin Miller, the defendant administrator, a son of the deceased, testified that his father always told him he intended to pay his Uncle Jesse if he got able, and the last time he said that was about two weeks before he died.
E. C. Littlefield, an attorney who had transacted much of decedent's legal business during his lifetime, testified that decedent spoke to him about his indebtedness, and on several occasions said that he wanted to pay his brother if he was ever in a position to do so; that he wanted to pay him; that he felt more like paying him than some of his neighbors; some of his other indebtedness he didn't want to pay at all. Witness further testified that in January or February, 1910, within two or three months of decedent's death, decedent told him that he thought he would be able to pay some on his indebtedness before a great while, and either at that or at another time decedent asked the witness what effect a payment would have on a debt that was barred by the Statute of Limitations, and the witness told him that it would revive it.
It was further shown in evidence that decedent on the 3rd of March, 1910, went to the bank at Knob Noster and signed a check on his account therein for $ 25 payable to "Miller Draft or bearer," and with it procured a draft payable to the order of appellant for $ 25. This draft was sent to appellant who indorsed and cashed the same, and it was returned to the bank at Knob Noster in the usual course of business paid and canceled. It seems that appellant held two other notes against deceased besides the one credited with the $ 25 and sued on. All of the notes, however, were barred at the time the $ 25 was paid. No evidence was offered on the part of respondent.
The trial court refused declarations of law numbered 1 and 2 asked by appellant, the first of which declared that where one person is indebted to another and the debtor sends money to the creditor by check or draft it is presumed to be in payment of a debt and not a loan or gratuitous gift, and that, if the court should believe from the evidence, that the deceased sent plaintiff a draft for $ 25 on March 3, 1910, the presumption is it was sent to him to apply upon the note sued on. The second declaration was to the effect that, if the court should find from the evidence, that defendant made the $ 25 payment to the plaintiff at the time specified, without directing the claimant upon what indebtedness it was to be applied, then the mere fact of sending the money, without any direction as to where it should be applied, authorized the plaintiff to apply such payment where it would best subserve his own interests, and that if the court should find that defendant owed plaintiff more than one note, and that defendant sent plaintiff $ 25 without directing where it should be applied, then claimant had the right to apply said payment upon any of said notes which he saw fit to apply it to, and where it would do plaintiff the most good.
For the defendant the court gave a declaration that before plaintiff can recover it must be shown that defendant paid plaintiff $ 25 at the time shown in evidence,...
To continue reading
Request your trial