Opinion
No. 6963.
April 18, 1951.
APPEAL FROM THE CIRCUIT COURT, STONE COUNTY, TOM R. MOORE, J.
Not to be published in State Reports.
E. C. Hamlin, Springfield, for appellant.
J. William Cook, Crane, for respondent.
The respondent was plaintiff and appellant was defendant, in the trial court, and we will so refer to them here.
The petition was based on a promissory note for $100 and 8% compound interest from date thereof (January 10, 1924), payable to T. S. Williams, and purporting to have been signed by defendant and by M. M. Cobb, defendant's father. Plaintiff prayed judgment for $696.90 and interest at 8% from date of filing suit.
In aid of the petition, plaintiff filed an affidavit for attachment, and certain real estate was seized thereunder. Defendant appeared and filed answer, admitting the paragraph of the petition, pleading the execution of the note by defendant and interest on interest from date thereof; but defendant denied ownership of the note by plaintiff, its assignment from payee, the propriety of the attachment and the intervention of the statute of limitations.
Afterwards, plaintiff filed a different affidavit for attachment and gave another bond. As no objection was made by defendant to the second affidavit for attachment or bond, defendant's criticism of the original attachment and bond need not be further discussed.
Plaintiff filed reply to the answer. Trial was had by the Circuit Judge, without a jury. Judgment was rendered for plaintiff for $718.10 on March 21, 1950. Being unsuccessful in his motion for a new trial defendant has appealed to this Court. The case was submitted here on briefs of the parties, without oral argument.
The chief defense was that the 10-year statute of limitations had intervened. Defendant cited Section 1013 R.S.Mo. 1939, R.S. 1949, § 516.110, and the cases of Baysinger v. Henser, 355 Mo. 1042, 199 S.W.2d 644-647; Jones v. Munroe, Mo.App., 231 S.W. 1069-1070; State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632-638. Defendant also cited Civil Code Sections 40 and 62, Laws 1943, R.S. 1949, §§ 509.090, 509.300. Those cases and statutory sections apply only where suit could have been filed before the statute of limitations intervened.
This case is governed by Section 1023, R.S.Mo. 1939, Sec. 516.200 R.S.Mo. 1949, which is as follows: "If at any time when any cause of action herein specified accrues against any person who is a resident of this state, and he is absent therefrom, such action may be commenced within the times herein respectively limited, after the return of such person into the state; and if, after such cause of action shall have accrued, such person depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action."
There is no question in the transcript but that defendant had been a resident of the State of Oklahoma, since at least the year 1926 or the year 1927. He had only been in Missouri for short periods since then and it is not shown that plaintiff ever knew of defendant's presence in Missouri at such times. Plaintiff, at least once, brought suit against defendant on the note; but failed to get service of process. He also brought suit against M. M. Cobb, but was unsuccessful, as that defendant claimed that his purported signature on the note was a forgery and unauthorized.
Defendant contended that the note had been paid. No evidence was produced in support of such claimed payment, except the oral testimony of defendant and his wife, and they said proof of such payment was lost. The burden of showing payment was on defendant. Montbriand v. Scruggs, 226 Mo.App. 436, 46 S.W.2d 211; Kirksey v. White, Mo.App., 167 S.W.2d 387. The trier of the facts below did not find that such payment had been made, and we fully agree with him as to such finding.
Defendant claimed that the petition did not allege that plaintiff was the owner of the note or that such note had been transferred to him for value. He cites five cases on this proposition, to wit: Therrien v. Mercantile-Commerce Bank Trust Co., 360 Mo. 149, 227 S.W.2d 708; Spears v. Bond, 79 Mo. 467-471; Welker v. Hayes, 224 Mo.App. 392, 22 S.W.2d 1052-1054; Donovan v. H. M. Thompson-Pottery Co., 9 Mo. a 595 (which we find in the appendix to 9 Mo.App. Reports, at page 595); Walker v. Hayes, Mo.App., 25 S.W.2d 523-524.
Those cases are not in point, as a demurrer to the petition was filed in each of those cases. There was no demurrer in this case. In Welker v. Hayes, 22 S.W.2d 1052, 1054, cited by defendant, Judge Bland of the Kansas City Court of Appeals, said:
"It is claimed that the petition fails to state a cause of action. No attack was made upon the petition before trial and it must be given a liberal construction. * * * The answer joins issue with plaintiff upon the allegation that he was the owner and holder of the note by alleging that defendant `denies that plaintiff is or ever was the legal owner and holder of the note described in plaintiff's petition; denies that plaintiff has any right, title or interest in and to said note.' Defendant claims that the note is payable to another than plaintiff and that consequently the latter must rely upon title by endorsement and that it has been repeatedly held in this state that it is necessary to allege in the petition the endorsement in order for the petition to state a good cause of action. There are cases in this state so holding, which were decided prior to the enactment in this state of the uniform Negotiable Instruments Act. See Mechanics' Bank v. Donnell, 35 Mo. 373; Dyer v. Krayer, 37 Mo. 603; Milbank-Scampton Mill. Co. v. Packwood, 154 Mo.App. 204, 207, 133 S.W. 667. This rule is recognized as a general rule by Corpus Juris. See 8 C.J. 886, 890. But that work also lays down the law as follows:
"`Under the Negotiable Instruments Law, it has been held sufficient to allege that plaintiff is the owner and in possession of the instrument, although it is not payable to plaintiff and there is no allegation that it has been assigned or indorsed to him.'"
There was no demurrer here. The ownership of plaintiff depended solely on the proof. The assignment of the note was a mere question of fact.
In his petition plaintiff had alleged: "Plaintiff states that after the execution and delivery of said above described note, it was transferred to him by endorsement by said T. S. Williams and delivered to him."
As a witness, plaintiff testified that the note was assigned to him in a horse trade soon after its execution. It is true that the petition does not allege a formal assignment to plaintiff by the payee, but that was a question of fact under the pleadings.
The trial court rendered judgment on March 17, 1950. The judgment seems rather large, but when it is considered that the note was for $100 and executed in the year 1924 and bore 8% compound interest, the amount awarded plaintiff was fully justified by the evidence. In paragraph 10 of the motion for a new trial, the defendant assigned error in the size of the judgment. He urged no such amount in his brief in this Court.
If the judgment was excessive in fact, we might investigate it under Rule 3.27 of the Supreme Court of Missouri, though not assigned in defendant's brief. But interest on interest for many years soon makes the note and interest amount to large sums. The judgment, rendered by the trier of the facts, was no greater than the amount asked for in the petition and was justified by the terms of the note itself.
We have noticed defendant's many complaints, but are satisfied that the judgment was for the right party, was not barred by the statute of limitations, was not excessive, and should be affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.