Maddox v. Duncan

Rombauee, P. J. The plaintiff appeals from a judgment against him on demurrer to his petition. [475] The petition contains two counts, the one charging the plaintiff as indorser, and the other charging him as guarantor of a promissory note. The following facts appear by the face of the petition. The defendant was payee of the note and in August 1877, assigned the same to one Grant by the following written indorsment: “Waiving notice, protest and demand, I assign the within note to Samuel Grant for value received, and I guarantee the payment of it.” Grant assigned the note to the plaintiff in June, 1891. The note became due June 4, 1880, and the present suit was instituted in May, 1894. The petition also states that payments were made, indorsed and credited on said note in 1879, 1880, 1883, 1888, 1889, 1891 and 1894, but it does not state by whom such payments were made. The demurrer was interposed on the ground that it appears on the face of the petition that the plaintiff’s cause of action accrued more than ten years prior to the institution of the suit, and, hence, that the claim is barred by the statute of limitations. No point is made on this appeal touching the manner in which the defense of the statute is raised,, nor is any point made on the fact that it does not appear by whom the payments were made. For the purpose of this appeal it is assumed that the defense was properly raised by demurrer, and that all the payments were made by the maker of the note. The only point presented for our consideration is whether, under the facts above stated, payments made by the maker of the note were sufficient to arrest the running of the statute in favor of the defendant. The statute of this state, after first providing in preceding sections that an action barred by the statute may be revived by the written promise or acknowledgment of the debtor, but that the promise of one of two [476] joint contractors, or of one of two joint administrators, shall have no effect on the liability of his co-promisor or co-administrator, proceeds to enact section 6795: “Nothing contained in the two preceding sections shall alter, take away or lessen, the effect of a payment of any principal or interest made by any person.” In Craig v. Callaway County Court, 12 Mo. 94, this section first received judicial construction. It was there held by a majority of the court, following the ruling made by Lord Mansfield in Whitcomb v. Whiting, 2 Douglas, 652, that a payment made by one joint promisor is sufficient to bind them all. Judge Mo Bbide, in an able dissenting opinion, demonstrated the logical fallacy of this position, and claimed that Lord Mansfield’s ruling had been subsequently repudiated by able judges on both sides of the Atlantic. In Leach v. Asher, 20 Mo. App. 656, and Zervis v. Unnerstall, 29 Mo. App. 474, we reviewed the decisions in this state on that subject, and were forced to conclude that the rule as stated in Craig v. Callaway County Court, supra, was the rule prevailing in this state, whatever the rule may be in other jurisdictions. In the Craig case the payment was made by the principal, and it was held effectual to bind the surety. Such was the decision likewise in Lawrence v. Dunkle, 35 Mo. 395. The tendency of subsequent decisions in this state was rather to enlarge than to restrict the power of persons thus to bind their co-obligors. Thus, in Bennett v. McCanse, 65 Mo. 194, it is intimated that, if payment is made by anyone authorized to make it, such payment will arrest the running of the statute as against all the parties to the paper. Bender v. Markle, 37 Mo. App. 234, 248, goes still further, and holds that that point was so decided in Bennett v. McCanse, supra. It is true that, in view of the preceding sections of the law which negative the right of even a joint maker [477] to affect the rights of his co-maker by a formal written promise, the holding that he can affect such rights by a nominal payment seems illogical. This distinction, however, has always been recognized in this state, and is emphatically recognized in County of Vernon v. Stewart, 64 Mo. 408, and we are bound to recognize it, whatever our individual views as to its soundness may be. Applying the rule to the facts of the case before us, we must conclude that the demurrer was improperly sustained, assuming, as seems to be conceded, that the payments were made by the maker of the note. The defendant by his indorsement became in effect a co-promisor upon nonpayment of the note at maturity. He could have been sued as such at any time after maturity of the note either severally or jointly with the maker. It is true that he could not, under the decision of Miller v. Mellier, 59 Mo. 888, give notice to the holder to sue, and thus discharge himself upon the failure of the holder to do so, but in all other respects he could not claim a position more favorable than if he had been a surety in terms. As the case falls within the rule established in the cases hereinabove cited, we are bound to hold that payments made by the maker were effectual to arrest the running of the statute in favor of the defendant. The judgment is reversed, and the cause remanded. All concur.