Ring v. Jamison

• Decision Date: 31 October 1877
• Citation: 66 Mo. 424
• Parties: RING v. JAMISON, Administrator, Appellant.
• Court: Missouri Supreme Court

66 Mo. 424

RING

v.JAMISON, Administrator, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

The decision of that court is reported in 2 Mo. App. 584.

At the trial a witness for the defendant testified that after the death of Peter Lindell, witness and Ring had a conversation, in which witness told Ring that Peter Lindell had said that Ring owed him $20,000. Ring, in reply, said, no, that he, Ring, only owed Peter Lindell $700, etc. In rebuttal, plaintiff offered himself as a witness and testified as to the conversation which took place between himself and witness, after Peter Lindell's death. Counsel for defendant objected to plaintiff as a witness on the ground of incompetency. The court overruled the objection and allowed plaintiff to testify as to said conversation. This is the testimony spoken of in the opinion of the court as having been given by the plaintiff in his own behalf.

Cline, Jamison & Day for appellant.

1. The account must be mutual, and have items on both sides, for the last item to draw after it those preceding it, and take the same out of the operation of the statute of limitations. Davis v. Smith 4 Me. 337; Buller's N. P. 149, 150; Miller v. Colwell, 2 South. 577; Coster v. Murray, 5 John. Ch. 522; Tucker v. Ives, 6 Cowen 193; Kimball v. Brown, 7 Wend. 322; Didier v. Davison, 2 Barb. Ch. 477; Hallock v. Losee, 1 Sandf. 220; Palmer v. New York, 2 Sandf. 318; Coggswell v. Dolliver, 2 Mass. 217, 221; Gold v. Whitcomb, 14 Pick. 188; Prematt v. Runyan, 12 Ind. 174; Buntin v. Logow, 1 Blackf. 373; Knife v. Knife, 2 Blackf. 340; Todd v. Todd, 15 Ala. 743; Wilson v. Calvert, 18 Ala. 274; Price v. Upshaw, 2 Humph. 142. Penn's Admr. v. Watson, 20 Mo. 13, was a case where there were mutual running accounts.

2. To constitute a ratification of an infant's contract a mere acknowledgement of indebtedness is insufficient. There must be a substantial promise to pay, with a knowledge of all the facts, and with a deliberate purpose of assuming a liability from which he knows he is discharged by law. Baker v. Kennett, 54 Mo. 92; Highley v. Barron, 49 Mo. 103; 1 Parsons on Contracts, (5th Ed.) 323; Ford v. Phillips, 1 Pick. 202; Smith v. Mayo, 9 Mass. 64; Curtin v. Patton, 11 S. & R. 305; Harmer v. Killing, 5 Esp. 102; Brooks v. Galby, 2 Hancock 34; Hinsby v. Margarity, 3 Barr 428.

Laughlin & Cameron, for respondent, filed no brief.

HENRY, J.

This cause originated in the probate court of St. Louis county, on a demand presented for allowance by plaintiff, against the estate of Peter Lindell, deceased, for the sum of $7,727.75. The account was composed of forty-eight items, all of which were for money lent by plaintiff to or advanced for Peter Lindell, except an item of $350 for diamond studs alleged to have been sold by plaintiff to said Lindell. The money was paid and advanced by plaintiff at different times, from February 10th, 1868, to August 3rd, 1871. The account had no credits. In the probate court there was a judgment for defendant. Plaintiff appealed to the circuit court where he obtained a judgment for $7,707 and 25/100. Defendant appealed to the general term, where the judgment was affirmed, from which he appealed to the Court of Appeals, where the judgment of the circuit court was affirmed, and he has brought it here by appeal. There was evidence which tended to prove that the account was correct. There was also evidence tending to show that it was not. The deceased, Peter Lindell, attained his majority 10th October, 1870, and all of the indebtedness, except $1,350 accrued, if at all, while he was a minor. He was a young man of wealth, who was unfortunately addicted to gaming, and some of his associations were evidently not of the most reputable character. Mr. Jamison, who administered on his estate, was also the curator of his property while a minor, and the evidence shows that young Lindell was frequently in possession of large sums of money, as much as $5,000 and $8,000 at a time; that he was prompt to pay his gaming debts, sometimes incurred at cards, and occasionally on bets on horse racing. One witness, a saloon keeper, testified that on the 22nd or 23rd of April, 1872, Peter Lindell stopped in front of his saloon in his buggy, and sent a colored man he had with him into the saloon for a glass of beer; that about that time, the plaintiff came into the saloon, and called Lindell in to take a glass of wine with him, and that plaintiff said to Lindell, “Pete, I am pretty near broke, I want to get some money.” Lindell replied, “I can't give you money now; you will have to wait a while; you will have to wait six months.” And after some other conversation, in which Lindell admitted his indebtedness to plaintiff, the latter took from his pocket a book, in reply to a question by Lindell, “how much do I owe you, anyhow?” added up the items in the book, showed it to Lindell, and asked him if it was right? And he said it was. Plaintiff wrote the amount on a card and handed it to Lindell. Witness said the amount was $7,727 75/100, and that Lindell agreed to pay it, with six per cent. interest, in six months. This was about eighteen months after Peter Lindell became of age.

The court, at the instance of plaintiff, gave an instruction in substance, that if, after he became of age, Lindell admitted his indebtedness to Ring in the aggregate amount of the several items of plaintiff's account, and agreed to pay it, then the jury should find for plaintiff, whatever they might find still due to plaintiff, with six per cent. interest. The following asked by defendant the court gave: That if Ring owed Lindell at the death of the latter, the jury should find for defendant; but refused the following: 1. The acknowledgement of indebtedness by Peter Lindell after he became of age, believing himself liable to pay the same, is not a ratification of the account sued upon, and if the account sued upon accrued while he was a minor, the verdict should be for defendant. 2. If any of the items of the account accrued more than five years before the commencement of the suit, plaintiff is not entitled to recover for such items. 3. If the curator of Peter Lindell supplied him with all necessaries while he was a minor, and the account sued upon accrued while he was a minor, then plaintiff cannot recover. 4. If his curator supplied him with all necessaries while he was a minor, and plaintiff loaned Peter Lindell money, or sold him diamonds, or other property while he was a minor, then plaintiff cannot recover.

1. RATIFICATION OF INFANT'S CONTRACT.

If the instruction given by the court for plaintiff is the law applicable to the facts which the plaintiff's testimony tended to prove, the court did not err in refusing the first, third and fourth instructions asked by defendant. The first declared a contrary doctrine to that of the plaintiff's instruction, and the third and fourth declared in substance that plaintiff could not recover, although the jury should find that after Lindell became of age he acknowledged his indebtedness, and promised to pay it in six months with interest....