Redman v. Hampton

• Decision Date: 31 May 1887
• Citation: 26 Mo.App. 504
• Parties: LOID H. REDMAN, Plaintiff in Error, v. SAMUEL S. HAMPTON, Defendant in Error.
• Court: Missouri Court of Appeals

26 Mo.App. 504

LOID H. REDMAN, Plaintiff in Error, v. SAMUEL S. HAMPTON, Defendant in Error.

Court of Appeals of Missouri, St. Louis.

May 31, 1887

ERROR to the Ralls County Circuit Court, THEO. BRACE, Judge.

Reversed and remanded.

BRISTOW & LIGHTER, for the plaintiff in error: The defence of the statute of limitations may be taken advantage of either by demurrer or plea. Savage v. Allen, 34 Mo. 224; Boyce v. Christy, 47 Mo. 70; Wynn v. Cory, 48 Mo. 346; Rogers v. Brown, 61 Mo. 187. The promise to give a credit on the note was void, not being in writing. Rev. Stat., sects. 3230, 3248; Chambers v. Rubey, 47 Mo. 100. There was no accord and satisfaction. Goff v Mulholland, 28 Mo. 397.

TORREY & GIVAN, with J. C. PIERSOL and J. P. WOOD, for the defendant in error: A part failure of consideration is not in the nature of a counter-claim, or set-off. Carpenter v Meyers, 32 Mo. 213; Voss v. McGuire, 18 Mo.App 482. The testimony in support of the plea of part failure of consideration was properly admitted. Dennison v. Bacon, 10 Johns. 198; Miller v. Ritz, 3 E. D. Smith, 253; Hill v. Enders, 19 Ill. 163; Colgrove v. Rockwell, 24 Conn. 584; Smith v. Carter, 26 Wis. 283; Hibbard v. Galusha, 23 Wis. 398; Peterson v. Johnson, 22 Wis. 21. It may be true, tat " if this debt had not been paid, or settled, as claimed by the defendant, it was barred by the statute of limitations," but to get the benefit of it, he must, when sued on it, avail himself of it, either by a demurrer or plea. Boyce v. Christy, 47 Mo. 70; Wynn v. Cory, 48 Mo. 346.

OPINION

LEWIS P. J.

The petition shows that, on January 1, 1875, the plaintiff bargained and sold to the defendant certain lands, for which the defendant paid him nine hundred dollars in cash, and gave his three promissory notes, each for six hundred and forty dollars, at two, three, and four years, with interest at ten per cent. per annum, to be compounded annually. Credits are indorsed on the first note for payments made in the years 1878, 1879, 1881, and 1882, amounting in all to $640.88. Judgment is prayed for the amount remaining due on the notes, with a vendor's lien upon the lands. The defendant's answer admits the making of the notes, and the purchase of the land, but alleges that, at the time of that transaction, the plaintiff was indebted to him in an amount between six hundred and seven hundred dollars, on account of the defendant's interest in certain cattle, which the plaintiff had, before that time, sold, as administrator of the estate of Christy Gentry, deceased; that it was, then and there, agreed between the parties that the amount of said indebtedness, whenever the same could be ascertained, should be treated as a part payment for the land, and should be entered as a credit upon the notes, on the day of their date; that it was in consideration of the plaintiff's promise and undertaking to this effect, that the defendant was induced to sign and deliver the notes; that the defendant has frequently requested the plaintiff to enter said credit on the notes, as a payment of so much of the purchase money for the land, and offered to pay the plaintiff the remainder due on said notes, but the plaintiff has uniformly refused to enter the credit, or to accept said residue in settlement and deliver to the defendant a deed for the land, in accordance with the contract.

The plaintiff replied, denying the new facts set up in the answer, and adding the following: " And the plaintiff further replying to said answer of the defendant, says: that, at and before the purchase of said land, by the defendant from the plaintiff, as in the plaintiff's petition set out, and long prior thereto, the defendant was indebted to and owed the plaintiff a much greater sum of money than the amount of six hundred dollars, or seven hundred dollars, as claimed in the defendant's answer as owing him by the plaintiff, for goods, chattels, stock, and personal property, bought by the defendant, for himself, and for others, for which he, the defendant, promised and agreed to pay the plaintiff at the said sale of Christy Gentry's personal estate, as stated in the defendant's answer, on or about the eighth day of October, 1867, and for divers and sundry other sums of money owing from the defendant to the plaintiff, for personal property, previously sold by the plaintiff to the defendant, and for money laid out and expended by the plaintiff for the defendant, at his request, and for the services of the plaintiff's jack to the defendant's mares, at the defendant's request, aggregating a greater sum than the alleged indebtedness of the plaintiff, as claimed by the defendant, and the plaintiff and the defendant, long before the purchase by the defendant of the said land from the plaintiff, had agreed to settle and off-set the mutual indebtedness, which had previously existed between them, and the same had been, by the plaintiff and the defendant, mutually cancelled and discharged; and, further replying to the defendant's said answer, avers and says that the alleged indebtedness, set up and averred in the defendant's said answer, from the plaintiff to the defendant, was, and is, as set out in the defendant's said answer, upon a simple contract, obligation, or liability, and not in writing, or not evidenced by any writing, sealed or unsealed, and the same did not accrue, and the defendant's cause of action, or pretended cause of action, did not accrue within five years next before the first day of January, 1875, the date of the purchase of the said land, and the date of the execution of said notes, and the said cause of action, or, the pretended cause of action, of the defendant, did not accrue within five years next before the thirty-first day of December, 1884, the date of the commencement of this suit, and the same did not accrue within five years next before the first day of June, 1885, the date of filing of the defendant's said answer in said suit; and the plaintiff further replying, avers that the defendant's pretended defence, and the facts and pretended facts, and the cause of action, or the pretended cause of action, being founded, or pretended to be founded, upon a contract, or pretended contract, or agreement, not in writing, either sealed or unsealed, the cause of action, if any there was, or ever had existed, had not, on the said first day of January, 1875, the date of the purchase of said land by the...