Wells v. Hargrave

• Decision Date: 06 November 1893
• Citation: 117 Mo. 563,23 S.W. 885
• Parties: WELLS v. HARGRAVE.
• Court: Missouri Supreme Court

23 S.W. 885

117 Mo. 563

WELLS v. HARGRAVE.

Supreme Court of Missouri, Division No. 1.

November 6, 1893.

STATUTE OF LIMITATIONS — NEW PROMISE.

A letter dated in 1880, stating that the writer had previously purchased land from plaintiff, for which he was to pay $1,500 in January, 1869, and that "my intentions are true and faithful, but my abilities are rather cramped now, until can sell, or make some money otherwise," is not a direct and unqualified acknowledgment of the debt, or an unconditional promise to pay the same, one of which is required by Rev. St. 1889, § 6793, to take a debt out of the operation of the statute of limitations.

Appeal from circuit court, Putnam county; Andrew Ellison, Judge.

Richard B. Wells filed a claim against the estate of James W. Wells, deceased, of which William Hargrave is administrator. The claim was disallowed in the probate court, and the claimant appealed to the circuit court. From a judgment disallowing the claim, he again appeals. Affirmed.

A. W. Mullins and J. E. Burnham, for appellant. Huston & Parrish, for respondent.

MACFARLANE, J.

This suit originated in the probate court of Putnam county, on a claim presented for allowance September 4, 1890, in which plaintiff charged, in substance, that on October 19, 1863, he sold and conveyed, by attorney, to defendant's intestate, 258 acres of land lying in Putnam county, for the sum of $1,290, for which he gave his two promissory notes for $645 each, — one payable January 1, 1868, and the other, January 1, 1869, — both bearing 10 per cent. interest, and also gave back a deed of trust on the land to secure them; that the notes had never been paid; that on the 5th day of September, 1880, deceased wrote to plaintiff, and thereby, in writing, acknowledged and promised to pay the same. The claim was rejected by the probate court, and on an appeal to the circuit court, and a retrial therein, judgment was rendered for defendant, and plaintiff appealed to this court.

Upon the trial in the circuit court, the sale of the land by plaintiff, and the execution of the deed, deed of trust, and notes were proved, dated, respectively, as charged in the claim. Plaintiff then read a letter from deceased to himself, in California, dated September 5, 1880, as follows: "Once more, after a long silence, I again write to you. * * * I received your letter three weeks since, and think I received the other one. I was working at a sell out, kept waiting to see the result, and expected it soon; consequently, neglected to write when I should have wrote, but for no other motive or cause, and hope no harm to come of it. No sale yet, and now don't know as we will make the sale, but not certain. I am holding for $20 per acre, and offered $15, but not certain they would stand at that. I am not fully made up my mind what I will do. If I should sell, in that event may visit you, as the trip would soon be made by R. R. I am not going to stop here, if I can do well by going away. I am improving the farm all I can. Makes it better to keep, or better to sell. I am getting things in fair shape to make some money on the farm, if I stay on it, and have health and luck. Will make you a statement of what I got of you in land purchases. The amount was two hundred and ninety acres and seventy-six hundredths (298.76) acres. The price was five dollars per acre, or ($1,548.05) fifteen hundred and forty-eight dollars and five cents, all to be due January, 1869. This statement I make from recollection, and pretty sure correct, but I hold the original papers, and canceled them all in the Texas trade and trip. My intentions are true and faithful, but my abilities are rather cramped now, until can sell, or make some money otherwise." The testimony of a brother, sister, and brother-in-law of deceased was to the effect that deceased, just before his death, acknowledged to them, verbally, his indebtedness to plaintiff. The evidence showed, further, that on the 18th of May, 1867, plaintiff made to deceased a general power of attorney, and that on the 19th day of April, 1878, under this power of attorney, he entered satisfaction of the deed of trust. The notes were in possession of deceased at his death, among some other old papers, were marked "Paid," and the name of the maker had been partly torn off. It appeared, also,...