Short v. Thomas

• Decision Date: 28 January 1914
• Citation: 163 S.W. 252,178 Mo. App. 400
• Parties: SHORT v. THOMAS.
• Court: Missouri Court of Appeals

163 S.W. 252

178 Mo. App. 400

SHORT v. THOMAS.

Springfield Court of Appeals. Missouri.

January 28, 1914.

1. BILLS AND NOTES (§§ 520, 527)—DEFENSES —MISTAKE—FINDING—EVIDENCE.

In suit on a note executed pursuant to a partnership settlement, evidence held to justify a finding that the note had been executed by mistake of both parties for a sum in excess of the defendant's indebtedness, and that the debt had been paid.

2. BILLS AND NOTES (§ 505)—EVIDENCE.

Where a note sued on was executed by a firm in settlement of an original firm debt, it was not error to permit the defendant to testify, on an issue of mistake in the amount of the note, that he owed only one-third of the original debt.

3. WITNESSES (§ 193)—PERSONS SINCE DECEASED —HUSBAND AND WIFE — CONFIDENTIAL COMMUNICATIONS.

In an action on a firm note, it was not error to permit the widow of a deceased member of the firm, who was a comaker of the note, to testify to statements and conversations of her husband made in the presence of the payee of the note and the plaintiff, to whom it was transferred for collection.

4. WITNESSES (§ 65)—PERSONS SINCE DECEASED —ACTION ON NOTE—WIDOW OF DECEASED MAKER.

Where, in an action on a firm note, it appeared that a deceased member of the firm had paid his part of the debt, and that the administration on his estate had been closed, and his widow discharged as administratrix, his estate being no party to the suit, she was not disqualified to testify to conversations had between her husband and others with reference to the controversy in the presence of the payee and others.

5. WITNESSES (§ 144)—TRANSACTIONS WITH PERSON SINCE DECEASED—COPARTIES.

In an action on a firm note against the surviving partner, he was not disqualified to testify because of the death of his partner, by Rev. St. 1909, § 6354, providing that, where one of the original parties to a contract is dead, the other may not testify.

6. PARTNERSHIP (§ 32)—PROOF.

Where there was ample evidence that father and son, whether dealing as partners or co-purchasers, traded on the one part with defendant for the purchase of certain goods, they were chargeable as partners in such transaction.

7. BILLS AND NOTES (§ 477)—AMOUNT—MISTAKE —REFORMATION.

It is not necessary to pray for reformation of a note for mistake where the mistake is merely set up as a defense, and the correction or reformation is not necessary in order to place the defendant in statu quo, or to give back some title or position surrendered by him in a settlement in which the note was executed.

8. BILLS AND NOTES (§ 452)—DEFENSES—MISTAKE.

In an action on a firm note against a surviving partner, defendant not being required to make defense to the note until suit was brought thereon, his failure to call the payee's attention to the fact that the note had been made out for too large a sum by reason of mutual mistake of the parties for several years was not such laches as would deprive him of the right to such defense.

9. ESTOPPEL (§ 95)—SILENCE—MISTAKE IN NOTE.

Where a defendant, the surviving partner of a firm which had executed a note for a firm debt, informed the payee of an alleged mistake in the amount of the note prior to the closing of the estate of the deceased partner, and there was no evidence of gross negligence or fraudulent intent to mislead the payee on defendant's part, he was not estopped, by failing promptly to claim such mistake, to plead it in defense.

10. EQUITY (§ 87) — EQUITABLE RELIEF — LACHES.

Lapse of time short of the period fixed by the statute of limitations will not bar equitable relief where the right is clear, and there is no countervailing circumstance.

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by Bart Short against Henry Thomas. Judgment for defendant, and plaintiff appeals. Affirmed.

J. N. Guthrie, of Marionville, and I. V. McPherson, of Aurora, for appellant. Mayhew, Sater & Gardner, of Monett, and J. S. Davis, of Cassville, for respondent.

FARRINGTON, J.

Suit on note. Judgment for defendant. Appeal brought to this court by the plaintiff.

In January, 1913, the appellant instituted this suit against the respondent; the petition being in the usual form followed in such actions, based upon the following promissory note:

                "$401.01.      Aurora, Mo., Dec. 30, 1907
                

"For value received, six months after date, 1, or we, promise to pay to the order of F. S. Short, at the Bank of Aurora, four hundred one and one one-hundredths dollars. Negotiable and payable without defalcation or discount, and with interest from date at the rate of eight per cent. per annum, payable annually, and, if the interest be not paid annually, to become as principal, and bear interest at the same rate.

                                          "Henry Thomas
                                          "H. F. Short."
                

The following credits appear indorsed on the back of said note:

"April 8, 1909, received by cash, $13.95; October 20, 1910, received by check, $75.00; December 7, 1910, received by cash, $25.00; May 26, 1911, received $50.00; January 16, 1912, received $100.00."

The following assignment is also indorsed on the back of said note:

                                         "Dec. 27, 1912
                

"I assign the within note to Bart Short for collection.

                                                 his
                                            F. S. X Short
                                                 mark
                

"Witnesses to mark: J. N. Guthrie. S. E. Phillips."

One of the signers of the note, H. F. Short, is referred to all through the record as Henry Short.

The answer admits the execution of the note, but sets up as a defense a mistake made by the parties in calculating the amount which was owing from defendant to plaintiff's assignor on an indebtedness which existed prior to the execution of the note. The answer, in part, is as follows (formal parts omitted): "Comes now the defendant, and, for his answer to the plaintiff's petition herein, admits that he signed the note sued on by the plaintiff, and that the payments thereon in plaintiff's petition set out were made by the defendant as therein designated, and, further answering, defendant says that said note was given to F. S. Short upon a settlement and accounting between defendant and the said F. S. Short, and was intended to be made for the amount which defendant then owed the said F. S. Short; that the defendant, at the time of executing said note, owed the said F. S. Short a one-third part of a promissory note executed on the 1st day of November, 1901, to said F. S. Short, for the sum of $765, bearing 8 per cent. interest from date thereof up to April 15, 1905, at which time a payment of $169.24 had been made by defendant on his part of said note, and credited thereon, and that the balance remaining due after such payment had borne 8 per cent. compound interest until December 30, 1907, the date of the execution of the note sued on herein; that the note sued on was intended to be executed for and to take the place of the amount due on defendant's one-third part of the $765, which was at the time the sum of $201.97. But defendant says that, in figuring up the amount of defendant's indebtedness on the $765 note, there was a mistake made by the parties thereto, and by reason of such mistake it was ascertained by said parties that defendant owed said F. S. Short, as his part of said $765 note, the sum of $401.01, instead of the sum of $201.97 aforesaid, and that the note now in suit was thereupon, by mistake of the said parties, given and received for the erroneous sum of $401.01, instead of $201.97, which was justly due said F. S. Short. And defendant says that the said note of $401.01 was and is without consideration for the sum of $199.04, being the excess over and above what was justly due from defendant to said F. S. Short in said settlement." The answer also set up the fact that defendant had paid, at the time this suit was instituted, more than the amount that was actually owing to the plaintiff. It also avers that the plaintiff, Bart Short, was the holder of the note by assignment without consideration, and had knowledge, at the time of the assignment of the claim, of the alleged defenses. A decree is asked for cancellation of the note and for judgment.

The reply was a general denial, and a plea admitting the execution of the $765 note by the firm of F. S. Short, and Henry Short, and Henry Thomas, each owning a one-third interest in the partnership, and a further plea that Henry Short and Henry Thomas owed the two-thirds of the $765 note, but denying that the credit of April 15, 1905, of $169.24 was money that was paid by the defendant, alleging that it was paid by Henry Short; also, that on December 30, 1907, a settlement took place, resulting in the execution and delivery of the note in suit to F. S. Short, and that on the execution of this instrument the original note of $765 was canceled and delivered to Henry Short, the other partner. It is also alleged that Henry Short is dead, having died some time after the settlement of December 30, 1907; that Henry Short and Henry Thomas figured the amount due, and that, if any mistake was made as to the amount, it was a mistake between themselves; that the defendant failed to make known the mistake to F. S. Short during the lifetime of Henry Short, but repeatedly made statements which acknowledged the amount of the note as correct, and that, by reason of such statements and failure to give notice to the said F. S. Short, he made no claim on Henry Short during his lifetime or against his estate, and that, owing to the defendant's acquiescence and conduct with reference to said note in suit, he is now estopped from making the defense set up.

It is undisputed that on November 1, 1901, F. S. Short, Henry Thomas, and Henry Short, who died in March, 1909, were copartners in the mercantile business at Jenkins, Mo., doing business under the firm name of Short & Thomas. At that time F. S. Short was an old man, and at the time of the...