Phillips v. Mahan
| Decision Date | 31 March 1873 |
| Parties | WM. B. PHILLIPS, Defendant in Error, v. ELIZABETH J. MAHAN, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Marion Circuit Court.
Glover & Shepley, and W. H. Bliss, for Appellant.
“A credit given by plaintiff, on an account which would otherwise be barred on its face, without proof of payment by defendant does not take the debt out of the operation of the statute of limitations.” (Taylor & McDonald, 2 Rep. Con. Ct., cited in Vol. 4, U. S. Dig., p. 813, § 482.)
“The indorsement on a note of part payment, made by the holder and uncorroborated by other evidence of payment, is not sufficient evidence to take the note out of the statute of limitations.” (Connelly & Pierson, 4 Gilm., 108.)
The following decisions show the strictness with which the courts have ruled, touching the question of part payment.
It is not proof of an oral agreement to enter a part payment, but an actual part payment, which the statute demands.
Dryden & Dryden, for Defendant in Error.
Money is not necessary to be used in order to a partial payment such as to avoid the statute. The defendant got value from the plaintiff, and by the mutual agreement of the parties the thing to which the agreement related was indorsed as a payment on the note.
This suit originated before a Justice of the Peace and was founded on a note executed by the defendant to plaintiff, where there was a judgment for plaintiff, from which an appeal was taken to the Circuit Court, and a judgment being again rendered for plaintiff, defendant brings the cause to this court by writ of error.
The defense to the action was the plea of the statute of limitations. The note sued on was dated January 1, 1858, due one day after date, and summons was issued February 27 1869. On the note appears a credit as follows, “by amount paid on barrel of flour, $6, March 20, 1859.” The evidence tended to prove that after the note was executed, to-wit, in the year 1859, plaintiff sold to defendant divers articles of merchandise, including sundry barrels of flour, and that the defendant executed another note for the amount, being $53; that afterwards it was “ascertained and agreed between plaintiff and defendant, that the amount of said note was $6 in excess of the sum due; that said mistake grew out of the fact that defendant was charged by plaintiff with one barrel of flour for which she should not have been charged, and the value thereof was embraced in said note; that afterwards, to-wit; n 1860, it having been ascertained and agreed between plaintiff and defendant, that said note for $53 was for $6 more than it should have been, plaintiff proposed to defendant that the said excess of $6, should be...
To continue reading
Request your trial
-
Orr v. Rode
...And the indorsement of payments on the notes is not evidence of the time of payment so as to take the case out of the statute. Phillips v. Mahan, 52 Mo. 197; v. Williamson, 72 Mo. 131. (8) The existence of the facts authorizing the trustee to sell should have been recited in the deed. Minot......
-
Regan v. Williams
...Limitations (3 Ed.), sec. 99.] The payments must be made by or with the consent of the payor. [Gardner v. Early, 78 Mo.App. 346; Phillips v. Mahan, 52 Mo. 197.] credits are entered by the holder, without the knowledge or consent of the payor, they are ineffective to check the statute. [Godd......
-
Meffert v. Lawson
...payment would redound to his interest. Hence, the wisdom of the requirement that there must be proof aliunde of such payments. In Phillips v. Mahan, 52 Mo. 197, it is held that indorsement of partial payment made on a note by the holder without the privity of the maker is not of itself suff......
-
Sugent v. Arnold's Estate
... ... 31; Goddard v. Williamson's Admr., ... 72 Mo. 131; Brown v. Brown, 5 S.W.2d 644; Regan ... v. Williams, 185 Mo. 620, 84 S.W. 959; Phillips v ... Mahan, 52 Mo. 197; Eubank v. Eubank, 29 S.W.2d ... 212; McCrillis v. Millard, 17 R. I. 724, 24 A. 576; ... 1 Wood on Limitations (4 Ed.), ... ...