Kemble ex rel. Rosenberger v. Logan

BOND, J. On the fifth day of July, 1880, defendants executed their note for $200, to tbe order of Thomas Kemble, payable in ninety days, with ten per cent interest. Plaintiff as legatee under bis father’s will, brought suit on tbe above note in 1897, averring in bis petition certain credits thereon, tbe last being for $5, and dated July 16, 1892. Defendants answered by a general denial, plea of certain credits, and $45.20 paid and accepted in full satisfaction not later than 1884. They also pleaded tbe statute of limitations. The reply reaffirmed tbe allegations of tbe petition and averred also a written acknowledgment of the debt in 1891, Tbe cause was submitted to tbe court without a jury. Plaintiff asked no declarations of law, and tbe court gave all those requested by tbe defendant, and found tbe issues'in favor of plaintiff. Defendants appealed. A full consideration of all tbe testimony shows that there is nothing before tbe court for review. Plaintiff’s evidence [256] shows that one of the defendants in 1891 wrote to Rosenberger, the attorney in charge of the note, inquiring whathad been-done with it, and asking if $100 would be accepted in settlement. Rosenberger also testified that the $5 credited on the note July 16, 1892, was the proceeds of a collateral note for $45.20 placed in his hands for collection and application upon the note in suit by one of the defendants. It is true the defendant, who indorsed this note for $45.20 and delivered it to Rosenberger, testifies that it was given and received in full payment of the note in suit and not as collateral security, but it was the exclusive duty of the trier of the facts to determine which of the two conflicting statements as to this transaction was the more credible. The burden of proving the plea of payment rested upon the defendants. Griffith v. Creighton, 61 Mo. App. 1. The note in suit was not delivered up, as it should have been if it was paid in the year 1884, as averred in the answer, hence it is clear we have no power to review the finding of the trial court against the defendants upon their plea of payment. The plaintiff gave evidence tending to prove that the credit entered on the note in suit July, 1892, was by authority of one of the makers of the note. If this was true, as the court found it to be, it was a complete avoidance of the bar of the statute as to all of the makers of the note. Goddard v. Williamson, 72 Mo. 133; Bennett v. Mo. Canse, 65 Mo. 194; Craig v. Callaway Co., 12 Mo. 94; Gardner v. Early, No. 7287, of this court, unreported. It being apparent that the verdict is supported by substantial evidence, the judgment herein is affirmed. All concur.