Ray v. McConnell

• Decision Date: 28 March 1914
• Citation: 179 Mo. App. 400,165 S.W. 394
• Parties: RAY v. McCONNELL et al.
• Court: Missouri Court of Appeals

165 S.W. 394

179 Mo. App. 400

RAY v. McCONNELL et al.

Springfield Court of Appeals. Missouri.

March 28, 1914.

1. LIMITATION OF ACTIONS (§ 197) — EVIDENCE — ACKNOWLEDGMENT—PART PAYMENT.

The mere production of a note, otherwise barred by limitations, with credits indorsed thereon under dates reviving or prolonging the note until after the time suit is brought, does not alone make a prima facie case of acknowledgment by part payment, so as to remove the bar of limitations.

2. LIMITATION OF ACTIONS (§ 195) — ACKNOWLEDGMENT—PART PAYMENT.

A partial payment of a note will remove the statutory bar, but where there is no proof of an actual payment, except an indorsement on the note, the proof must show that the indorsement of payment was made, either by or for the holder of the note, or with the knowledge and consent of the maker, and, if made by or for the holder, that the indorsement was made before the note was barred by limitations, and proof that an indorsement of a payment on a note was in the handwriting of the payee, since deceased, and that the indorsement was placed by him on the note before the running of limitations, established a prima facie case of actual payment at that time, so as to start the running of limitations anew.

3. LIMITATION OF ACTIONS (§ 199) — ACKNOWLEDGMENT—PART PAYMENT.

Where, in an action on notes barred by limitations, unless revived by partial payments, one of which was made before the running of limitations in the first instance, and the others thereafter, there was evidence that the indorsements were in the handwriting of the payee, since deceased, and that his daughter, who had lived with and near him, aided him in looking after his business, and calculated for him the interest on the notes when handed to her for that purpose, and that she had figured the interest with the indorsements about the times of the dates of the indorsements, there was a prima facie case of partial payments to remove the bar of limitations, and the issue must be submitted to the jury.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by J. W. Ray, administrator of W. F. Steele, against M. C. McConnell and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.

Barrett & Moore, of Ozark, and Gideon & West, of Springfield, for appellant. J. T. White and Roscoe Patterson, both of Springfield, for respondents.

STURGIS, J.

This is a suit on two promissory notes for $150 each, signed by defendants and payable to plaintiff's intestate. The notes are dated May 7, 1888, payable one day after date. The suit was commenced on July 14, 1913, and the defense is the statute of limitations. The plaintiff relies on certain payments indorsed on the notes as being sufficient to take the case out of such statute. On one of the notes the following payments appear indorsed thereon: August 27, 1896, $15; July 9, 1897, $18; May 12, 1902, $25; March 1, 1904, $25; December 21, 1904, $25. On the other note the following payments are indorsed: November 14, 1896, $10; June 2, 1900, $100; September 6, 1900, $50; June 1, 1901, $50; March 1, 1907, $10; August 6, 1910, $15.50. Each of these payments is evidenced by an indorsed receipt on the back of the notes, bearing the dates as above stated. These indorsements were proven to have been made by W. F. Steele, deceased, the payee and owner of the notes, and are in his handwriting. No actual payments are proven to have been made, and the question for decision is whether there is sufficient evidence, showing when the indorsements were actually placed on the notes, to make a prima facie case for plaintiff, and thereby take the case to the jury. The trial court, after plaintiff's evidence was in, directed a verdict for the defendants.

The defendants correctly contend that indorsements on a note do not prove themselves, and the mere production of the note, otherwise barred by limitation, with credits indorsed thereon under dates which apparently revive or prolong the life of the note until after the time suit is brought, will not, without further proof, make a prima facie case. Such has been the law of this state since the decision of Goddard v. Williamson, 72 Mo. 131. See Smith v. Brinkley, 151 Mo. App. 494, 132 S. W. 301.

It is the acknowledgment by the maker that the note evidences an existing and yet unpaid debt that breathes life into it if already dead or prolongs its life for the statutory period from the date of the acknowledgment. A partial payment thereon is such an acknowledgment. Haver v. Schwyhart, 48 Mo. App. 50. When there is no proof of an actual payment other than an indorsement of the...