Roberts v. Neale

• Decision Date: 07 December 1908
• Citation: 134 Mo. App. 612,114 S.W. 1120
• Parties: ROBERTS v. NEALE.
• Court: Missouri Court of Appeals

114 S.W. 1120

134 Mo. App. 612

ROBERTS v. NEALE.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

Rehearing Denied January 11, 1909.

1. APPEAL AND ERROR (§ 934) — REVIEW — PRESUMPTIONS.

On appeal from a judgment on a verdict, the court will assume the existence of the facts which the evidence in behalf of the successful party tends to prove.

2. LIMITATION OF ACTIONS (§ 53) — COMPUTATION OF PERIOD OF LIMITATION — ACCRUAL OF RIGHT OF ACTION — ACCOUNTS.

If the last item of an account is not barred by limitations, the whole account is saved from the operation of the statute, though it be one-sided, with all the items against one party.

3. LIMITATION OF ACTIONS (§ 53) — COMPUTATIONS OF PERIOD OF LIMITATION — ACCRUAL OF RIGHT OF ACTION — ACCOUNTS.

Where it is fairly inferable from the conduct of the parties, while an account is accruing, that it is to be taken as such, it will be so regarded by the courts in computing the period of limitation.

4. LIMITATION OF ACTIONS (§ 199) — TRIAL — QUESTION FOR JURY.

Whether it is fairly inferable from the conduct of the parties, while an account is accruing, that it is to be taken as such, so as to save the whole account from the operation of the statutes of limitation, is a question for the jury.

5. MONEY RECEIVED (§ 1).

An action for money had and received lies when one receives money not his, but which, rightfully, he should not have received, or which, if he properly received it, should be paid over.

6. LIMITATION OF ACTIONS (§ 51) — COMPUTATION OF PERIOD OF LIMITATION — ACCRUAL OF RIGHT OF ACTION.

An action by a maker of a note against the holder to recover overpayments made at different times in ignorance of the fact that it had been paid is essentially an action for money had and received, the aggregate of such payments being a single demand, the subject of the single action, and, if the last payment is within the period of limitations, the whole demand is saved from the operation of the statute.

7. PLEADING (§ 418) — DEFECTS AND OBJECTIONS — WAIVER OF OBJECTIONS TO PETITION.

Rulings on motion to strike out and demurrers based on defects in the petition are waived by answering, except where no cause of action is stated.

Appeal from Circuit Court, Clay County; Harris L. Moore, Special Judge.

Action by David C. Roberts against Virginia Neale. From a judgment for plaintiff, defendant appeals. Affirmed.

Clinton A. Welsh and Harry Friedberg, for appellant. Sandusky & Sandusky and Martin E. Lawson, for respondent.

ELLISON, J.

This action arose on account of certain alleged overpayments on a promissory note. The judgment in the trial court was for the plaintiff.

Since the verdict was for plaintiff, we will assume to be facts those things which the evidence in his behalf tends to prove. It appears: That a note for $1,500, dated the 8th of December, 1886, due in 12 months, with 10 per cent. compound interest, was given by plaintiff and a co-maker, together with two others as sureties, to John Neale; that Neale died in March, 1887, and this defendant, his widow, became the owner of the note in 1891. There were various payments made to defendant on the note, until finally a payment made in December, 1897, fully discharged it; but, in ignorance of the fact that the note had been fully discharged, plaintiff made various other payments to defendant from time to time, beginning in March, 1898, and continuing on down to August 25, 1902. There was another transaction occurring in January, 1905, wherein it was alleged that $578.60 was also paid, but this item was dismissed by plainti...