Sonnenfeld v. Rosenthal-Sloan Millinery Co.

• Decision Date: 27 February 1912
• Citation: 145 S.W. 430
• Parties: SONNENFELD v. ROSENTHAL-SLOAN MILLINERY CO.
• Court: Missouri Supreme Court

145 S.W. 430

SONNENFELD v. ROSENTHAL-SLOAN MILLINERY CO.

Supreme Court of Missouri, Division No. 2.

February 27, 1912.

Motion for Rehearing Overruled March 21, 1912.

1. LIMITATION OF ACTIONS (§ 13)—ESTOPPEL TO PLEAD.

Plaintiff cannot claim that defendant is estopped to plead limitations because plaintiff was induced not to bring the action by defendant's promise not to plead limitations, where plaintiff pleaded that the action was brought within the statutory period.

2. LIMITATION OF ACTIONS (§ 13)—ESTOPPEL TO PLEAD—"IMPROPER ACT."

Defendant company wrongfully procured possession of a note to plaintiff, and refused to permit plaintiff to see it. Plaintiff had forgotten who executed the note, and thought it was executed by defendant's president, and sued him within the statutory period, which defendant knew for several years, during which time it refused to let her see the note, and did everything possible to prevent her from learning the real maker. Rev. St. 1909, § 1905, provides that if any person, by any improper act, prevents the commencement of an action, such action may be commenced "within the time herein limited, after the commencement of such action shall have ceased to be so prevented." Held that, when sued on the notes, defendant was estopped from pleading limitations by reason of its improper act in refusing to surrender the note to plaintiff.

Appeal from St. Louis Circuit Court; M. G. Reynolds, Judge.

Action by Fannie Sonnenfeld against the Rosenthal-Sloan Millinery Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This suit was instituted July 13, 1905, in the circuit court of the city of St. Louis, and comes here on plaintiff's appeal from a judgment sustaining a demurrer to the third amended petition, which is as follows:

"Plaintiff by leave of court files this her third amended petition, and for cause of action states: That the defendant is a corporation duly organized under and by virtue of the laws of the state of Missouri. That on July 10, 1894, I. B. Rosenthal Millinery Company, a corporation duly organized under the laws of the state of Missouri, executed and delivered to plaintiff its negotiable promissory note, whereby said company promised to pay to the order of plaintiff, for value received, on demand, the sum of $10,470.40, with interest from date at the rate of 6 per cent. per annum. That on November 10, 1894, the said I. B. Rosenthal Millinery Company paid to plaintiff all interest due on said note. That on the 1st day of January, 1900, the corporate name of the I. B. Rosenthal Millinery Company was changed and the name the Rosenthal-Sloan Millinery Company was adopted, and that the Rosenthal-Sloan Millinery Company, the defendant herein, is the same corporation which was formerly known as I. B. Rosenthal Millinery Company. The plaintiff further states that she is unable to file said note with her petition because of the fact that the defendant, through its officers, agents and servants, in 1896 obtained possession of said note wrongfully, fraudulently, without paying any consideration therefor, and without the knowledge or consent of plaintiff; that upon direction of defendant said note was abstracted from a safe deposit box where it had been placed by plaintiff by one of the agents of defendant, and by said agent delivered to defendant, and defendant has since said time wrongfully retained possession of said note.

"Plaintiff states that during the years from 1896 to 1901, inclusive, she, at various times and occasions discussed with the president of the defendant the payment of said note; that said officer of defendant frequently stated to plaintiff that it was not convenient to pay said note, assured her most earnestly that she was entirely safe and would be paid, and further stated to plaintiff that, even if said note was not paid within 10 years, still it would be a good note, because the statutes of limitations would never be pleaded against said note as a bar to same, and plaintiff did not sue on said note because of said statements, until as hereinafter stated.

"Plaintiff further states that the president of defendant company during all of the years above mentioned was I. B. Rosenthal; that the said I. B. Rosenthal is the brother of plaintiff; that during the conversation, as aforesaid which she had with the president of defendant, her brother, I. B. Rosenthal, with reference to said note, the payment thereof, and the statute of limitations, that the president of defendant, her brother, with the intention of deceiving and defrauding plaintiff, and causing her to lose her legal rights against the defendant with reference to said note, the said president of the defendant always referred to said note as `my note,' and the said president was so earnest in his request to plaintiff at the various times that they discussed said note that the plaintiff, his sister, should not proceed against her brother on `his note'; that the president of defendant finally succeeded in causing plaintiff to believe that it was the note of her brother, I. B. Rosenthal, and not the note of I. B. Rosenthal Millinery Company, this defendant; that plaintiff and her brother, I. B. Rosenthal, during the years above mentioned showed all the love and affection due from a brother and sister towards each other, and plaintiff relied implicitly upon the statements made to her by her brother, I. B. Rosenthal, because of her love for him and her confidence in him.

"Plaintiff further states: That during the fall of 1901 she went to the establishment of defendant, and made a peremptory demand for the payment of said note of her brother, I. B. Rosenthal, being under the impression from the many false statements made by her brother to her that her brother I. B. Rosenthal was the maker of said note. That the said president of defendant, acting for and on behalf...