Ring v. Jamison

• Decision Date: 03 July 1876
• Citation: 2 Mo.App. 584
• Parties: PATRICK B. RING, Respondent, v. WILLIAM C. JAMISON, Administrator of PETER LINDELL, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 584

PATRICK B. RING, Respondent,

v.WILLIAM C. JAMISON, Administrator of PETER LINDELL, Appellant.

St. Louis Court of Appeals, Missouri.

Jul. 3, 1876.

1. The contract of an infant may be ratified by an oral promise, made after he comes of age, to pay the debt.

2. It is not necessary that the person ratifying his contract, made as an infant, should know that he is not legally bound at the time he makes the new promise.

3. Every new item in a running open account draws with it all preceding items, and is a recognition of the balance due, whether the account be mutual or not.

4. Counsel may sometimes ask a witness a question the answer to which may degrade him, but it is in the discretion of the court to require an answer. The court may also, under certain circumstances, forbid such questions to be asked.

5. A party may testify in his own behalf as to matter not directly relating to the contract in issue, even though the other party to the contract be dead.

6. In a suit against an administrator, where the administrator himself is present defending during the trial, and waived notice of demand in the Probate Court, it is too late after verdict to object that no formal proof that he was administrator was made.

APPEAL from St. Louis Circuit Court.

Affirmed.

Cline, Jamison & Day, for appellant, cited: 1 Greenl. on Ev. (7th ed.) 596-597, secs. 458, 459; 1 Wag. Stat. 120, sec. 8; Coughlin v. Haeussler, 50 Mo. 128; McLean v. Thorp, 3 Mo. 215; Poe v. Domic et al., 54 Mo. 124; Stanton v. Ryan, 41 Mo. 510; Baker v. Kennett, 54 Mo. 92; Ford v. Phillips, 1 Pick. 202; Smith v. Mayo, 9 Mass. 64; Curtin v. Patton, 11 Serg. & R. 307; Hinsby v. Margarity, 3 Barr, 428.

Matthew O'Reilly, for respondent, cited: Greenl. on Ev., sec. 457; Poe et al. v. Domic et al., 54 Mo. 124; Looker v. Davis et al., 47 Mo. 143; Highley v. Barron, 40 Mo. 106; Stiles v. Smith, 55 Mo. 363.

BAKEWELL, J., delivered the opinion of the court.

This was a suit originally instituted in the Probate Court of St. Louis county, against the estate of Peter Lindell, deceased, for money loaned to defendants' intestate, money paid out for him, and articles of jewelry sold to him from time to time, from February 10, 1868, to August 3, 1871, making an aggregate of $7, 727.75. There were no credits. Judgment was for defendant in the Probate Court. In the Circuit Court a trial was had before a jury, and verdict and judgment for the plaintiff for $7,707.25.

Peter Lindell became of age on October 10, 1870. Defendant, Jamison, was his curator, and supplied him with all necessaries during his minority. Lindell appears to have been a young man of expensive habits, and the evidence for plaintiff is the testimony of the associates of Lindell and ministers to his pleasures, and of his servants. It appears that he was rich, and there is testimony that he was liberal of his money, and rather made a point of paying his racing and gambling debts. In appears also that plaintiff had, at times, control of large amounts of money. The deceased seems to have been often embarrassed for ready money. One witness, a bar-keeper, testifies to Lindell going over the items of this account with plaintiff, after Lindell obtained his majority, recognizing its correctness, adding it up; that Ring then made a pencil note of the sum total on a card, or in the memorandum book in which the account was kept, and that Lindell promised to pay it. On the other hand, there was evidence of deceased, on one occasion, giving to plaintiff a large sum of money, at his request, declaring at the same time, with great vehemence, that plaintiff must in future look elsewhere for money, for he would furnish him no more. The mother of deceased swore that plaintiff admitted to her, after the death of her son, that he owed deceased $700, and proposed to her that they should trump up this claim against his estate and divide the amount allowed. In short, the evidence was contradictory, and cannot be reconciled.

The court gave the following instruction at the instance of plaintiff:

“If the jury believe from the evidence that, on or about 23rd April, 1872, Patrick B. Ring and Peter Lindell had an accounting and a settlement between them of the money advanced or loaned by Ring to Lindell at sundry times prior to said date; and that at the said settlement it was found that said Lindell admitted that he was indebted to Ring in the aggregate amount of the several sums taken into account in said settlement, as set forth in the settlement thereof filed in the cause, amounting in the aggregate to the sum of $7,727.25; and that said Lindell promised to pay said sum to said Ring; and that, at the time of making said promise, said Lindell was over the age of 21 years, then the jury will find for the plaintiff so much of said money as they may believe from the evidence is still due to said Ring, with interest thereon, at the rate of 6 per cent. per annum, from the time said Lindell promised to pay the same.”

To the giving of this instruction defendants excepted.

The following instruction was given at the instance of defendants:

“If the jury believe from the evidence that Patrick B. Ring, the plaintiff, owed Peter Lindell at the time of his death, they will find for the defendants.”

And the following instructions were asked by defendants, and refused:

1. “The acknowledgment 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 whilst Peter Lindell was a minor, under the age of twenty-one years, the jury will find a verdict for defendants.”

2. “If any of the items of the account sued upon accrued more than five years prior to the commencement of this suit, then the 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 that the account sued upon accrued while Peter Lindell was a minor, then the plaintiff cannot recover.”

“If the jury believe from the evidence that the curator of Peter Lindell supplied him with all necessaries while he was a minor, and that the plaintiff loaned him money, or sold him diamonds or other property, as mentioned in the account sued upon, while he was a minor, then the said plaintiff cannot recover on the same.”

To the refusal of the court to give any of these instructions defendant duly excepted, and in due time filed his motion for a new trial, which being overruled, the cause is brought before us by appeal.

1. We see no error in the instruction given for plaintiff.

An infant may avoid his contract, if not for necessaries; but he may also ratify it, and he may do this by word only. A mere acknowledgment that the debt is due is not enough; but a promise, expressed or implied, makes him liable. In the case at bar there was sufficient evidence of an express promise to warrant the instruction. There is no pretense that the promise was extorted or conditional.

2. The first instruction refused to defendant was properly refused, because, though it is true that a mere naked acknowledgment of indebtedness would not alone amount to a ratification, the instruction, as worded, was calculated to mislead. It was not necessary, to make the ratification valid, that Lindell should know, at the time of promising to pay the debt contracted when an infant, that he was not legally liable for it. If he knew all the facts, that is sufficient; ignorance of the law should not shield an adult in this more than in any other case.

3. The second instruction was properly refused, because the account was a running account, and would not be barred until the last item was barred. It is true that the account was not mutual, having no credits; but it seems to be held in Missouri, whatever may be the rule in some other States, that every new item in a running account draws after it all preceding items, and is a recognition of the balance when it shall be struck.

It is true that, in Penn v. Watson, 20 Mo. 16, there were mutual accounts and a set-off; but the question has been repeatedly brought before our Supreme Court in matters growing out of accounts under the mechanics' lien law, and the law of boats and vessels, where an entire running account has been brought within the operation of the lien by the later items.

Stine v. Austin, 9 Mo. 558, was a case in which it was maintained that the plaintiff, a mechanic, was entitled to recover only so much of the account as accrued within six months before filing the lien. But the court held that, as a running account, it constituted but one demand, which accrued only when the last item was furnished.

The difference between a running account and one that does not run is that, in the latter, each item is a separate cause of action in itself. The minds of the parties...