Sugent v. Arnold's Estate

• Citation: 101 S.W.2d 715,340 Mo. 603
• Decision Date: 05 February 1937
• Docket Number: 34314
• Parties: Emma A. Sugent, Appellant, v. Estate of Frederick W. Arnold
• Court: United States State Supreme Court of Missouri

101 S.W.2d 715

340 Mo. 603

Emma A. Sugent, Appellant, v. Estate of Frederick W. Arnold

No. 34314

Supreme Court of Missouri

February 5, 1937

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed.

Burnett Stern & Liberman for appellant.

(1) The endorsements of interest on the note and allonge, being made with the knowledge and consent of defendant's testator the maker of the note, tolled the Statute of Limitations. Sec. 861, R. S. 1929; Meffert v. Lawson, 289 Mo. 337, 233 S.W. 31; Goddard v. Williamson's Admr., 72 Mo. 131; Brown v. Brown, 5 S.W.2d 644; Regan v. Williams, 185 Mo. 620, 84 S.W. 959; Phillips v. Mahan, 52 Mo. 197; Eubank v. Eubank, 29 S.W.2d 212; McCrillis v. Millard, 17 R. I. 724, 24 A. 576; 1 Wood on Limitations (4 Ed.), sec. 96, p. 518. (2) The defendant is estopped to invoke the Statute of Limitations as a defense to his claim. Bridges v. Stephens, 132 Mo. 524, 34 S.W. 555; Swofford D. G. Co. v. Goss, 65 Mo.App. 55; Mo. Pac. Ry. Co. v. Commission Co., 71 Mo.App. 299; Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169; Miller v. Miller, 26 Ind.App. 498, 60 N.E. 176; Lange v. Binz, 281 S.W. 626, 9 Ann. Cas. 755, 63 L. R. A. 206.

Anderson, Gilbert, Wolfort, Allen & Bierman for respondent.

(1) Only the record proper can be reviewed by the appellate court, because the true and correct abstract of the record shows that no exceptions were taken by appellant to the overruling of her motion for a new trial. Where no exceptions are saved to the action of the trial court in overruling a motion for new trial, only such error as appears upon the face of the record proper can be considered by the appellate courts. Hays v. Foos, 223 Mo. 423; State ex rel. Johnson v. Hiller, 295 S.W. 132; Holt v. Hanley, 245 Mo. 352; Newton v. Olson Schmidt Const. Co., 248 S.W. 929; Reed v. Moss, 258 Mo. 172; Abbott v. Gillum, 146 Mo. 176; Ross v. Kansas City, etc., Ry. Co., 141 Mo. 390; Arnold v. Iowa State Ins. Co., 44 S.W.2d 866; Danforth v. Ry. Co., 123 Mo. 206; Sprague v. Mathias, 148 Mo.App. 169; Mossman v. Pollack, 53 S.W.2d 1106; Rees v. Burrell, 55 S.W.2d 1004; Robinson v. Cantley, 44 S.W.2d 199; Cosler v. Chase, 160 Mo. 424; Sicher v. Rembuseck, 193 Mo. 128. (2) No error appears in the record proper and no point is made by appellant that there is error on the face of the record proper. Therefore, there is nothing for this court to review and the judgment of the circuit court must be affirmed. Cases under Point (1). (3) Furthermore, plaintiff cannot recover, because the note upon which her claim is based is barred by the Statute of Limitations. Sec. 861, R. S. 1929; Meffert v. Lawson, 289 Mo. 337; Goddard v. Williamson's Admr., 72 Mo. 133. (a) There was no evidence adduced in the case at bar that any endorsement of interest claimed to have been paid was made with the knowledge and consent of decedent Fred W. Arnold, or that an endorsement of interest was actually made at a time when the note was not barred by the Statute of Limitations. Therefore there was no proof in this case which could operate to remove the bar of the statute. Meffert v. Lawson, 289 Mo. 360; Goddard v. Williamson's Admr., 72 Mo. 133; Brown v. Brown, 5 S.W.2d 644; Eubank v. Eubank, 29 S.W.2d 214. (b) To remove the bar of the Statute of Limitations competent proof of the date when endorsements of interest payments were actually made must be adduced, and such proof must show that the endorsements were actually made at a time when the note was not barred. It cannot be presumed that an endorsement of an interest payment on a promissory note was made at the time it bears date. Meffert v. Lawson, 289 Mo. 360; Eubank v. Eubank, 29 S.W.2d 214. (c) There was no proof in this case to show the dates when any endorsements of interest payments were made on the note, nor was there any proof that deceased ever made any interest payments on the note, therefore the note was barred by the Statute of Limitations. Brown v. Brown, 5 S.W.2d 646; Meffert v. Lawson, 289 Mo. 360.

OPINION

Frank, J.

Action to recover on an alleged claim against the estate of Frederick W. Arnold, deceased.

During the lifetime of Frederick W. Arnold and on February 10, 1892, he executed to his mother, Amelia Arnold, his promissory note in the principal sum of $ 7000, due five years after date with interest at the rate of six per cent per annum. Amelia Arnold died in 1926. Frederick W. Arnold died on September 15, 1931. Emma Sugent, a daughter of Amelia Arnold, and a sister of Frederick W. Arnold, claims that her mother, Amelia Arnold, gave to her the $ 7000 note in question in 1912 or 1913. Her sister, Sadie Pfeiffer so testified. On November 24, 1931, Emma Sugent filed said note in the Probate Court of the City of St. Louis as a claim against the estate of her deceased brother, Frederick W. Arnold. The probate court disallowed the claim. On appeal to the circuit court the claim was again disallowed and claimant appealed to this court.

The defense to the claim is that the note was barred by the Statute of Limitations.

The first contention of appellant is that the endorsements of interest made on the note with the knowledge and consent of the maker of the note tolled the Statute of Limitations.

Twenty-eight separate endorsements appear on the note. Under each endorsement of interest is the signature of Amelia Arnold, the payee named in the note. The first endorsement is as follows:

"Int. received to date Feb. 10, 1893

Amelia Arnold."

Endorsements, in effect, the same as the one above quoted appear on the note under date of February 10, for each year subsequent to 1893, to and including the year 1922.

There is no presumption that the endorsement of a payment on a promissory note was made at the time it bears date. Where the Statute of Limitations is relied on as a defense to a note, the plaintiff should not be permitted to read in evidence credits endorsed on the note without first proving when the endorsements were made, where they bear date prior to the running of the Statute of Limitations. The purpose of the rule is obvious. If the rule were otherwise it would open wide the door to fraud and afford the holder of the note an opportunity to revive a note already barred by dating an endorsement of payment thereon prior to the bar, especially where, as here, the maker of the note is dead. [Meffert v. Lawson, 289 Mo. 337, 359, 360, 233 S.W. 31, and cases cited.] Where endorsements are made on a note by the holder thereof prior to the bar of the statute, this will furnish prima facie evidence that payments were made at that time, provided it be further shown that the endorsements were in fact made on the dates which they bear. [Meffert v. Lawson, supra.] However, such prima facie showing may be overcome by positive proof that no such payment was made, and the endorsement on the note was made without the knowledge or consent of the maker of the note. [Regan v. Williams, 185 Mo. 620, 631, 84 S.W. 959.] Endorsements of payments made after the note is barred do not revive the note unless such endorsements are made at the direction of, or with the knowledge and consent of the debtor. [37 C. J. 1154; Haver Admr. v. Schwyhart, 39 Mo.App. 303, 305; Brown v. Carson, 132 Mo.App. 371, 376, 111 S.W. 1181; Wester v. Wester's Estate, 189 S.W. 608; Goddard v. Williamson's Administrator, 72 Mo. 131, 133.]

Respondent contends there was no evidence tending to show when the credits were endorsed on the note. Appellant contends otherwise.

Sadie A. Pfeiffer, a sister of claimant and of deceased was the only witness who testified in the case. We call attention to that part of her testimony upon which appellant relies to establish the fact that the endorsements on the note were made on the dates they bear.

"Q. Do you know of your own knowledge that the words, "Interest received to date" were written by your sister upon the occasion they were so written, and the dates were written by your sister, and the ditto marks were written by your sister, whereas the signature is that of your mother? Do you know that of your own knowledge? A. Yes, I know.

"Q. Were you present when that was done? A. I was present on some occasions but not all of them."

Testimony of the witness that she knew that the endorsements were written by her sister upon the occasion they were so written, does not tend to show upon what occasion they were written, or that they were written on the dates which they bear. Besides she testified that she was present only on some occasions. Twenty-eight separate endorsements appear on the note. She did not testify that the endorsements which were made on occasions when she was present, were made on the dates they bear. She did not testify on what or how many occasions she was present. Her evidence does not tend to show that any of the endorsements were made on the dates they bear or at any other dates which would obviate the bar of the statute.

Appellant calls attention to the evidence that Amelia Arnold was afflicted with creeping paralysis, a progressing disease, which affected her ability to write, and to the further fact that some of her later signatures when compared with the earlier ones indicate the progress of the disease. Such evidence might be a circumstance pointing to the fact that some of the endorsements were made later than others, but it does not tend to show on what dates any of them were made, or that they were made on the dates they bear.

Appellant makes the further contention that even though the endorsements were made after the statute had run, such endorsements would revive the note because they were made with the knowledge and consent of the maker of the note.

We agree with appellant that payments endorsed on a note with the knowlegde and...