Zaring v. Bauman

• Decision Date: 26 June 1920
• Docket Number: No. 13399.,13399.
• Citation: 223 S.W. 947
• Parties: ZARING v. BAUMAN.
• Court: Missouri Court of Appeals

223 S.W. 947

ZARING v. BAUMAN.

No. 13399.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be officially published."

Action by R. W. Zaring against John Bauman. From judgment for plaintiff, defendant appeals. Reversed and remanded.

R. D. Rodgers, of Mexico, Mo., and Harris & Price, of Columbia, for appellant.

N. T. Gentry, of Columbia, for respondent.

ELLISON, P. J.

Plaintiff's action is based on three promissory notes: One for $500, dated August 23, 1906, one for $300, dated February 20, 1912, both payable on demand, and the other for $350, payable eight months after date, and dated January 21, 1913. All given by defendant to August Bauman, defendant's father. It is alleged by plaintiff that each of the notes was indorsed by August to his wife (defendant's stepmother), and that she indorsed them to plaintiff. The suit was begun January 23, 1918, and consequently the 10year statute of limitation had run against the note, first above mentioned, dated in 1906, unless a payment of $12.50, indorsed on the note and claimed to have been made by defendant to his father on June 19, 1916, was in fact wade by him.

It will be noticed that the payment purports to have been made about two months before the 10-year Jimitation had run. The law is that if the holder indorses a payment before the note is due, it being against his interest to do so, it will be presumed to be a payment. Goddard v. Williamson, 72 Mo. 131; Haver v. Schwyhart, 39 Mo. App. 303, 305; Berryman v. Becker, 173 Mo. App. 346, 355, 158 S. W. 899.

It appears that defendant's father lived in Illinois, and defendant himself resided in this state on a farm belonging to his father, and that the latter had taken out insurance on the dwelling on the farm, on which the premium was $12.50, that defendant paid several of these premiums, and that the last one was made the 12th of February, 1916, and was indorsed on the note as 20th of June, 1916. The indorsement of payment is as follows: "June 1916. Paid $12.50, 6-20-16." Below this in pencil, is the following: "a/c Ins. attached letter." It is not disputed that defendant paid to the local agent of the insurance company by check the premium of $12.50 in February, 1916. August Bauman was afterwards declared to be insane.

But the difficulty with plaintiff's case is that there is no evidence whatever that defendant authorized the payment made on his father's insurance to be entered as a payment on his note to his father. Nor is there any evidence that the father entered the credit on the note before it was barred. The mere indorsement itself does not prove it; there must be evidence aliunde the indorsement to show that it was, in fact, indorsed as a credit before the note was barred. Otherwise nothing would stand in the way of the holder of a barred note from reviving it by the mere act of entering a credit as of a date when the note was not barred. Haver v. Schwyhart, 39 Mo. App. 303, 305; Berryman v. Becker, 173...