Gardner v. Early

BLAND, R. J. This suit is on the following promissory note: “$400.00. August 31st, 1893. “Twelve months after date we promise to pay to the order of John Gardner Eour Hundred Dollars, for value received, negotiable, and payable without defalcation or discount, and with interest from date at the rate of eight per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest. “No.........Due August 31st, 1884. “Early & Young, ' “Mahlon Rohrer.” On the bach of the note are the following indorsements: “Eeb. 26, 1885. “One year’s interest paid on note. “Eeb., 1890, Or. for sawing.” The petition averred the following payments, which were not indorsed on the note, to wit: November 1, 1894, Thos. Dyke’s account, $8.70; February,f 1895, J. M. Dyke’s account, $5.63; February, 1895, Charles Shelton’s account, $4.22. The answer was a general denial and a plea of the ten year statute of limitations. Trial was had by the court, resulting in a judgment for plaintiffs, from which defendants appealed. Evidence was introduced tending to prove that the indorsement of February, 1890, “Or. for sawing” was made with the knowledge "and consent of Early, the principal debtor, and that the accounts of Thomas and J. M. Dyke, and the one of Charles Shelton, were due to Early on account of sawing done by him for Shelton and Dykes; that by an arrangement between them and Gardner, the payee of the note, these several accounts were to be credited on the note; that Early on being informed of the arrangement assented to it, and never thereafter presented nor demanded payment of [350] either of the accounts. None of this testimony was contradicted, except by an inferential contradiction shown by Early’s book of account, in which he had credited Gardner by cash for the sawing done for him prior to and in February, 1890. On the hearing the court ruled that the burden was on the plaintiffs to prove payments to take the case out of the bar of the statute, and permitted the indorsements to be read, with the understanding that they would be excluded, unless proven to have been made at the time they purport to have been made. Under the decisions in this State this ruling was correct, for it is well settled here that where an indorsement of payment on a promissory note made before the bar of the statute attaches, is relied on to rescue the note from the bar of the statute of limitations, it must be shown that the payment was made at the time it purports to have been, or that it was made by or with the consent of the payor. Goddard v. Williamson’s Adm’r, 72 Mo. 133; Philip v. Mahan, 52 Mo. 197; Haver v. Schwyhart, 39 Mo. App. 303; same case on Second appeal, 48 Mo. App. 50; Smith v. Zimmerman, 51 Mo. App. 519. The case of Carter, Adm’r, v. Carter, 44 Mo. 195, adhering to the rule announced in Green-leaf on Evidence, section 22, that “wherever an indorsement is shown to have been made at the time it tears date, which will te inferred from its face, in the absence of opposing circumstances, the presumption naturally arising is that the money mentioned in it was paid at that time,” has not been followed by any subsequent case in this State, and is no longer controlling authority on us. The appellant’s assignment of errors and the record do not agree. He complains that the court overruled his objections to the admission of the indorsements in evidence. The court, according to the bill of exceptions, sustained his objection, by admitting the indorsements, with the understanding 'that they would be excluded unless proven; the proof was made, and the indorsements were not excluded. The court instructed that the [351] burden was on plaintiffs to show that Gardner indorsed the credits on the note before it was barred and to show that such payments were made by the defendants or one of them. This instruction was more favorable to defendants than the law warrants. It is not necessary to prove both that the indorsements were made when they purport to have been made, and that the payments evidenced by the indorsements were actually made by the defendants or one of them; the proof of either one or the other of these facts was sufficient to take the cause out of the bar of the statute. The other instructions given were favorable and liberal to the defense;’those refused were in the nature of commentaries on the evidence. Every latitude and presumption that could be legally and fairly given or indulged was awarded the defense throughout the conduct of the trial, and yet the court found for plaintiffs. Under the law and evidence, it could not have done otherwise, and we affirm the judgment. All concur.