State v. Allen

• Decision Date: 04 June 1908
• Citation: 111 S.W. 622,132 Mo. App. 98
• Parties: STATE ex rel. SHIPMAN v. ALLEN et al.
• Court: Missouri Court of Appeals

111 S.W. 622

132 Mo. App. 98

STATE ex rel. SHIPMAN v. ALLEN et al.

St. Louis Court of Appeals. Missouri.

June 4, 1908.

1. ESTOPPEL — CLAIM OR POSITION IN JUDICIAL PROCEEDING.

Defendants set up by way of counterclaim two notes of relator, the second one of which was intended as a renewal of the first, and the same payments were credited on both. They abandoned the counterclaim on the second note prior to the first trial of the action on relator's allegations that such note had not been delivered and was conditionally signed, and that it was not to be delivered until other signers were procured, and trial was had on the issues raised as to the first note both in the trial and appellate courts. Held, that relator was estopped to subsequently defend against the first note on the ground that it had been paid by the note which he alleged to be invalid.

2. SAME.

Such estoppel cannot extend by construction beyond the allegations in relator's pleading, and, as nothing was said therein about the partial payments, he was not estopped to deny that partial payments were made on the first note.

3. LIMITATION OF ACTIONS — PARTIAL PAYMENTS.

A partial payment suspends the statute of limitations because the payment is looked on as an acknowledgment of the debt from which a promise to pay the remainder may be inferred.

4. SAME — EFFECT — LIABILITY OF SURETY.

A partial payment by a principal will toll the statute of limitations as to a surety; but if the principal pays on a renewal note which he treats as valid, and his surety deems invalid, the payment will not, as against the surety, suspend the statute as to the original note.

5. SAME — INSTRUCTIONS.

On the issue as to whether a debtor had departed from the state so that ordinary process could not be served on him, the instructions should advise the jury how ordinary process of law may be served on a defendant under the statute, to wit, by leaving a copy of the petition and writ at his usual place of abode with a person of his family over 15 years of age.

6. SAME — CONSTRUCTION OF STATUTE.

Rev. St. 1899, § 4282 (Ann. St. 1906, p. 2356), providing that, if a person who is a resident of this state when a cause of action accrues against him shall thereafter depart from and reside out of the state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of the action, is to be construed in connection with section 570 (Ann. St. 1906, p. 597), which provides for service of process by leaving a copy of the petition and writ with a person of the defendant's family over 15 years of age at his usual place of abode.

7. SAME — DEPARTURE FROM STATE — TEMPORARY RETURN.

Where a debtor had departed from the state, and resided elsewhere and had no place of abode herein, his temporary return and presence at court did not continue the operation of the statute of limitations.

8. APPEAL AND ERROR — SUBSEQUENT APPEAL — LAW OF CASE.

A ruling made on a former appeal will be taken as the law of the case on a subsequent appeal.

9. BILLS AND NOTES — PAYMENT — PAYMENT ON RENEWAL NOTE.

Payments made on a renewal note, which is afterwards declared to be invalid, must be credited on the original note.

Appeal from Circuit Court, Stone County; Jno. T. Moore, Judge.

Action by the state, on the relation of J. W. Shipman, against L. L. Allen and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

See 124 Mo. App. 465, 103 S. W. 1090.

R. H. Davis, for appellants. W. B. Skinner, for respondent.

GOODE, J.

This is an action on an attachment bond executed by L. L. Allen, A. Forsythe, and J. F. Stark, three of the defendants. The other two defendants are L. L. L. Allen and J. Forsythe. Those five men composed a firm styled Allen, Stark & Co. This firm on May 16, 1893, sold to W. S. White an ore crusher for which White gave his promissory note of said date for $450, payable in six months, with J. A. White, J. N. Scott, and J. W. Shipman, who is the relator in the present action, as sureties. Said note was indorsed on the back by W. H. Smith, at the request of L. L. Allen, some time after its execution and delivery to the payees. When it matured, November 15, 1893, L. L. Allen, one of the members of the firm of Allen, Stark & Co. and its active representative in the transactions with defendants, told the principal in the note, W. S. White, an extension of the debt would be granted if a new note was given in lieu of the first one. A note for $450, dated November 15, 1893, and payable in three months, was made out by Allen and given to W. S. White to be signed by himself as principal and, he says, by George Davis and others, presumably the sureties on the first note, as sureties. It was signed by W. S. White, as principal, and by George Davis, George Messick, and J. W. Shipman, the relator, as sureties. The testimony goes to show relator signed it on an understanding that it was not to be delivered to L. L. Allen for the firm of Allen, Stark & Co. until W. S. White had procured the signatures of George Davis, J. N. Scott, J. A. White, and W. H. Smith, besides relator's own, as sureties. After W. S. White had procured the signature of relator, J. W. Shipman, George Messick, and George Davis, he happened to be in L. L. Allen's bank on other business, and showed the note in that condition to said Allen, when the latter took and kept it, saying it was good enough with the names already on it. W. S. White protested against this, saying his agreement with the parties who had signed was that it was not to be delivered until the other sureties on the first note had signed it. Allen retained it. The foregoing is, according to the testimony of W. S. White, given for relator. The testimony in regard to who was to sign the second note is not altogether consistent with the names actually on it. George Davis signed it, though he had not signed the first note. It seems this was done at Allen's request. George Messick also signed it. He was not on the first note, and no explanation is given regarding his signature. We are safe in saying the testimony for relator goes to show he signed on condition that the signatures of certain other persons as sureties were to be procured, and that some of the signatures that were to be procured before it was delivered were not on it when Allen got and kept it, and that Allen was notified at the time he took the note of the condition on which relator signed. Allen himself gave testimony tending to show no conversation passed between him and W. S. White at the time the note of November 15th was turned over to him (Allen) for the firm of Allen, Stark & Co. Allen's testimony, too, goes to prove the original note was treated by him, as the representative of his firm, as having been paid by the second one and was marked "paid" across the face. Instead of being surrendered to the makers, it was placed among the canceled notes in the bank of which Allen was cashier. Three payments were made and indorsed on the note of November 15th, as follows: January 18, 1895, $32.50; November 7, 1895, $11; May 4, 1896, $38. Relator Shipman turned over to Allen the last of those payments, but swore he did so merely to accommodate the principal, W. S. White, and one W. G. Craig, who furnished the money and sent it by relator, as he was going to Pierce City from the mines where the ore crusher was located. Allen gave a receipt saying the payment was received of W. G. Craig, secretary of the Spring River Mining Company, through J. W. Shipman, and that the money was to be credited on the note of W. S. White, George Messick, et al., namely, the second note. In January, 1901, an action was instituted by the payees on said note against all the signers, including relator. Relator pleaded in defense the condition on which he had signed it, as above stated, and after the taking of some depositions this action was dismissed. In August, 1901, Allen, Stark & Co. filed suit on both notes, and in aid of the action sued out a writ of attachment against the relator, Shipman, presumably on the ground of nonresidence. The plaintiffs in that action elected to proceed to trial on the note of May 15th and dismissed as to the other. Relator obtained judgment on the plea in abatement dissolving the attachment, and, at the trial on the merits, after evidence had been taken and the case submitted to the jury, plaintiffs took a nonsuit as to said note of May 15th. What the issues were on the merits is not shown in the present record. Relator, having succeeded in defeating the attachment, instituted the present action to the March term, 1906, of the Lawrence circuit court on the attachment bond, which had been executed, as said, by only three of the firm of Allen, Stark & Co. The two other members of the firm, L. L. Allen and J. Forsythe, were made parties defendant as being parties in interest, a ruling approved by this court on a former appeal of the present case and not now in question. State ex rel. v. Allen, 124 Mo. App. 465, 476, 103 S. W. 1090.

We will state enough of the pleadings in this case to show the issues joined: Suffice to say as to the petition that it asks damages for three items: $250 for fees of relator's counsel earned in defense of the attachment action; $88.40 for railroad fare, traveling, lodging, and boarding expenses incurred by relator in coming to Missouri and preparing for the trial of the attachment action; and $114 as the value of the time relator lost in looking after said action. The answer of defendants admitted the execution of the attachment bond and denied the other averments of the petition. It then set up two counterclaims against relator. One of said counterclaims is based on the note of May 15, 1893, less the aforesaid payments, which were alleged in the answer to have been made on said note. The other counterclaim is based on the note of November 15, 1893, on which the same payments are credited. In...