Haver v. Schwyhart

Ellison, J. This case is here for the second time. It is reported in 39 Mo. App. 303. The question was and is, whether the note was barred by limitation. If the last credit indorsed on the note, was paid within ten years of the institution of this- suit, then the causé was not barred. So there were two issues at the last trial: First, did Winters, the payee, indorse the credit, or have it indorsed, before the note was barred % The burden to show this was on plaintiff, and when shown it made a prima facie case for plaintiff; for, as explained when the case was here before, if the payee enters accredit on a note while it is yet alive, the act is against his interest, and will be evidence establishing prima facie a payment by the payer. The second issue was whether, notwithstanding the indorsement, there was in fact such a payment made by the payers. Ther burden to show there was not was upon defendants; for , they must overcome plaintiff’s prima facie case, which was made by showing the credit was entered before the note was barred. [54] These issues were submitted to the jury by instructions. But it is urged against plaintiff’s instructions that they direct a verdict for plaintiff if the jury believe the indorsement of credit was entered during the life of the note, without reference to whether such credit arose from a payment made by defendants. But this defect is rendered harmless by defendants’ instruction which directed the jury not to find for plaintiff, if the payers had not made a payment within ten years prior to bringing the suit. So that the jury must have found that the credit was the result of a payment made on the note by the payers. There was no error in permitting witness Brown to testify to what Waters told him at the time he said he entered the credit. It was only the balance of a conversation which defendants had first drawn out. Neither did the court err in excluding the testimony of one of the defendants as the plaintiff was dead. Judgment affirmed. All concur.