St. Charles Savings Bank v. Thompson

• Decision Date: 16 July 1920
• Citation: 223 S.W. 734,284 Mo. 72
• Parties: ST. CHARLES SAVINGS BANK, Appellant, v. J. W. THOMPSON
• Court: Missouri Supreme Court

223 S.W. 734

284 Mo. 72

ST. CHARLES SAVINGS BANK, Appellant, v. J. W. THOMPSON

Supreme Court of Missouri, Second Division

July 16, 1920

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed.

C. W Wilson, Jones, Hocker, Sullivan & Angert, E. P. Tralles and Theodore C. Bruere for appellant.

(1) The judgment holding the matter in controversy to be a thing adjudicated in a former suit between the same parties is patent reversible error, because it plainly appears there had never been any judgment on the merits of the controversy between the parties. All that appears in fact is that in a former suit upon demurrer to plaintiff's petition the court had entered an order sustaining the demurrer upon the ground that the petition failed to state a cause of action and because on the face of the petition the cause of action appeared to be barred by the Statute of Limitations, and granting the plaintiff time in which to plead further. No final judgment was entered on the demurrer, but the plaintiff appeared and took a voluntary nonsuit in the case. It is settled law in this State: First. "After demurrer the plaintiff may amend, of course, with or without costs as the court may order." R. S. 1909, sec. 1803. Second. A plaintiff has a right to dismiss his suit, or take a nonsuit at any time before his case is finally submitted to the court or jury, on its merits. R. S. 1909, sec. 1908. Third. An order sustaining a demurrer to a petition is not such a former adjudication as will preclude a recovery for the same cause in a subsequent action. Wells v. Moore, 49 Mo. 230; Garrett v. Greenwell, 92 Mo. 123; Baldwin v. Davidson, 139 Mo. 126; 21 Am. & Eng. Enc. Law (1 Ed.), 271; Bennett v. Bank, 61 Mo.App. 297; Swing v. Furniture Co., 150 Mo.App. 574. There had never been any adjudication on the merits in this case. The judgment of the court sustaining the plea of res adjudicata is supported by neither facts nor law, and constitutes reversible error. (2) The judgment holding that the plaintiff's cause of action was barred by the ten-year Statute of Limitations, under the undisputed facts, is contrary to law, and constitutes reversible error, because: First. To hold that the cause of action on the collateral note and contract in suit accrued on the day of its date violates the manifest intention of the parties. The consideration for the contract was an extension of time for the payment of the debt. The cause of action did not accrue until the Quarry Company finally defaulted in the payment of its debt on December 19, 1905, and demand made on the defendant September 24, 1906. Jameson v. Jameson, 72 Mo. 642; Boyd v. Buchanan, 176 Mo.App. 60; Wood on Limitations, p. 322; 7 Cyc. 849; Campbell v. Whorisky, 170 Mass. 63; Hartland v. Jukes, 1 H. & C. 667; 7 Cyc. 855. Second. The extension of the principal notes in the bank was of the very essence of the collateral contract. The court must consider the whole transaction in all its parts, and consider the whole together, the consideration for the collateral note and contract in suit, the circumstances under which it was given and the purpose intended to be effected by the parties, and thus ascertain and enforce the true interest of the parties. Duvelly v. Duvelly, 132 Mass. 509; Davis & Ranken v. Hendrix, 59 Mo.App. 449; Leonard v. Railroad, 54 Mo.App. 301; B. and L. Assn. v. Obert, 169 Mo. 515; Tetley v. McElmany, 204 Mo. 394; Construction Co. v. Tie Co., 185 Mo. 62-69; Herick v. Frisbie, 66 Mo.App. 19, 20; McDonald v. Wolff, 47 Mo.App. 309; Morey v. Clopton, 103 Mo.App. 380; Wilson v. Wilson, 115 Mo.App. 648. (3) Even if it be held that plaintiff's right of action accrued as of the day of the date of the contract in suit, January 2, 1901, still the plaintiff's recovery in this action is not barred by limitation. On December 17, 1906 plaintiff brought suit against defendant, for the same cause in the St. Louis Circuit Court. Plaintiff took a nonsuit in that case April 30, 1914, and brought the pending suit within one year after the nonsuit. That under the statute prevented the bar. R. S. 1909, sec. 1900; State ex rel. v. O'Gorman, 75 Mo. 378; Wettmore v. Crouch, 188 Mo. 647; Shaw v. Pershing, 57 Mo. 420; Heffernan v. Supreme Council, 40 Mo.App. 608; Wood v. Wortman, 85 Mo. 305; Lottman v. Barnett, 62 Mo. 170; Buse v. Transfer Co., 45 Mo. 463; Boone v. Slover, 66 Mo. 430, 436; Estes v. Fry, 166 Mo. 79; Lilly v. Tobbein, 103 Mo. 490; Norton v. Reed, 253 Mo. 253; Sonnenfeld v. Rosenthal, 247 Mo. 266; McMillen v. Reauma, 100 N.W. 166. The bringing of the second suit for the same cause, on March 10, 1913, did not abate the first suit of December 17, 1906. Courim Co. v. Gelleland and Hamlin, 98 Mo.App. 587; Land Co. v. Quinn, 172 Mo. 587; R. S. 1909, secs. 1800, 1804, 1806.

Marshall & Henderson and Brownrigg & Mason for respondent.

(1) Since the contract sued on is an obligation to pay upon demand, dated in the year 1901, and this suit was not brought until the year 1914, it is obviously barred unless there is something in the facts alleged and proven which operates to toll the Statute of Limitations. (2) A contract is not relieved from the operation of the statute because the obligation is payable on demand. The Statute of Limitations on a demand note runs from its date and not from demand. Easton v. McAllister, 1 Mo. 662; Collins v Warburton, 3 Mo. 203; O'Fallon v. Kern, 10 Mo. 554; Darby v. Darby, 14 L. R. A. 1208. See full discussion of subject in 136 Am. St. 470. (3) Any writing which promises to pay money is barred in ten years, whether payment is certain or contingent, and "a demand does not alter the case." Rowe v. Mettelberg, 96 Mo.App. 493. (4) No demand is necessary on a demand note. A suit is a demand. Bank v. Ward, 35 Barb. 637; Fell's Point Sav. Inst. v. Weedon, 18 Md. 320. (5) A party cannot stop the running of the Statute of Limitations by failing to make a demand. Nor will a demand extend the statute. Steele v. Steele, 25 Pa. 156; Pittsburgh v. Byers, 32 Pa. 24. (6) The collateral obligation of J. W. Thompson to pay $ 20,000 on demand is an entirely different contract from the note evidencing the indebtedness of the Thompson and Gray Quarry Company which it was pledged to secure, and the maturity of the principal debt or extensions of the maturity thereof in no way affect the maturity of the collateral obligation pledged. When the obligation pledged is at maturity the pledgee may enforce payment whether the principal debt is due or not. Jones on Pledges & Collateral Securities, sec. 665; Dougherty v. Wiles, 156 S.W. 1090; Bizzell v. Roberts, 156 N.C. 274; Seeley v. Wickstrom, 49 Neb. 730. (7) The fact that the indebtedness of the Quarry Company is not barred does not affect the question as to the collateral contract. In re Hartraft's Est., 153 Pa. St. 530. (8) The allegation contained in the petition in this case to the effect that the plaintiff filed suit in 1906 upon the same cause of action as that pleaded in the case at bar, is obviously contrary to the fact. The first suit filed was filed on December 18, 1906. The original petition was a suit upon an ordinary demand promissory-note for $ 20,000. It stated an unconditional obligation to pay a sum certain upon demand. The present suit sets forth a conditional obligation to pay, not a sum certain, but to pay, up to $ 20,000, so much as should equal the particular unpaid indebtedness of the Thompson & Gray Quarry Company. (9) The recognized tests by which to determine whether or not two petitions state substantially the same cause of action are: (a) That the same evidence will support both petitions. (b) That the same measure of damages will apply to both. If both of these fail the causes of action are not substantially the same. Scovill v. Glasner, 79 Mo. 449; Heman v. Glann, 129 Mo. 325. A comparison of the two petitions in question here clearly shows that both of these tests fail. To support the original petition in the first case, it was only necessary for the plaintiff to offer in evidence the original promissory note, an alleged verified copy of which was filed as an exhibit. That would have made a prima-facie case entitling the plaintiff to judgment against the defendant for $ 20,000, together with interest from the date of the note at the rate specified. In the case at bar the plaintiff must prove: First, the pledge of the note sued on; second, that the Quarry Company is still indebted to it and the amount of that indebtedness. And the measure of its recovery is not necessarily the face value of the note sued on with interest, but the present indebtedness, if any, to the plaintiff, of the Quarry Company up to the amount of $ 20,000 and interest on the note sued on. (10) The first amended petition in the first suit, filed September 9, 1912, which did state substantially the same cause of action as that stated in the present suit, cannot operate to relieve the plaintiff of the bar of the statute, because it was a substitution of a new cause of action and not an amendment of the original cause of action, and it is the law that where a so-called amended petition is filed after the statutory period, changing the cause of action, suit will nevertheless be barred. Wasson v. Boland, 136 Mo.App. 622. (11) The running of the statute is not affected by the filing on the 11th day of March, 1913, of the suit which stated substantially the same cause of action as is stated in the present case. The statutory period of ten years had already passed. It was not the same cause of action as that stated in the original petition in the first suit. (12) The bringing of the second suit does not operate to relieve the plaintiff of the bar of the statute under the provisions of sec. 1900, R. S. 1909, with reference to nonsuit, for the...