Stark Bros. Co. v. Gooding

• Citation: 162 S.W. 333,175 Mo.App. 353
• Parties: STARK BROS. CO. Plaintiff in Error, v. JOHN R. GOODING, Defendant in Error
• Decision Date: 05 January 1914
• Court: Court of Appeals of Kansas

162 S.W. 333

175 Mo.App. 353

STARK BROS. CO. Plaintiff in Error, v. JOHN R. GOODING, Defendant in Error

Court of Appeals of Missouri, Kansas City

January 5, 1914

Error to Boone Circuit Court.--Hon. D. H. Harris. Judge.

AFFIRMED.

Judgment affirmed.

Anderson & Starrett for defendant in error.

Walker & Walker for plaintiff in error.

OPINION

ELLISON P. J.

Defendant John R. Gooding bought of plaintiff a lot of fruit trees and agreed to set them out on his farm and to pay to plaintiff "sixty dollars, due and payable as follows: All payments and interests here after particularly specified to date from the first day of May, 1892; one-fifth in six years, one-fifth in seven years, one-fifth in eight years, one-fifth in nine years, one-fifth in ten years, with interest at the rate of six per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest; the right being reserved to said Gooding to pay the full amount together with accrued interest at any time he may elect within the period of ten years next after the date last above written."

When this action was instituted no part of the debt had been paid and all but the last installment had been due more than ten years. The question for decision is whether limitation had run on those installments. It is clear that the statute will begin to run when the "cause of action shall have accrued," (Sec. 1887, R. S. 1909), and a right of action has accrued when a suit may be instituted for its enforcement. Therefore, since plaintiff might have commenced actions on each of these installments as it became due, the statute began to run from those dates. [25 Cyc 1106; Bush v. Stovall, 71 Pa. 208; Burnham v Brown, 23 Me. 400; DeUprey v. DeUprey, 23 Cal. 352; Pelton v. Bemis, 44 Ohio St. 51, 4 N.E. 714; Robertson v. Pickerell, 77 N.C. 302; Gonsoulin v. Adams, 28 La. Ann. 598; Wood on Limitations, sec. 151; Angel on Limitations, sec. 110.] We do not see any particular phase of this contract which should take it from under the rule.

Plaintiff urges that the obligation for sixty dollars is a debt and that an action of debt will not lie until the whole sum is due. But by distinctions not based on much reason, assumpsit for damages for nonpayment of an installment could be maintained before others became due; though if the action were brought in debt it could not be instituted until all installments were due. [Rudder v. Price, 1 H Blackstone 547; Bush v. Stovall, supra.] In Iron Mountain Ry. Co. v. Stansell, 43 Ark. 275, the court said: "When a demand certain is payable by installments, upon maturity and nonpayment of one or more installments, covenant will lie. Nevertheless the obligee may wait until all the installments become due and payable and then bring debt;" and held that the statute would not begin to run until all were due. But this is contrary to the weight of authority. It is true that one may wait until all installments are due and then...