Supreme Court of Missouri, 1922

Lehner v. Roth

Supreme Court of Missouri · Decided July 27, 1922 · JAMES T. BLAIR, J.

243 S.W. 91; 295 Mo. 174; 1922 Mo. LEXIS 107 (South Western Reporter)

Counsel

Grant Grant for appellant. (1) The court erred in sustaining defendant's demurrer to the first, second and third counts of plaintiff's amended petition. (2) The instrument sued on is a promissory note. Finney v. Shirley Hoffman, 7 Mo. 42 ; McGowen v. West, 7 Mo. 569 ; Ubsdell Peirson v. Cunningham, 22 Mo. 124 ; Brady v. Chandler, 31 Mo. 28 ; Locher v. Kuechenmiester, 120 Mo. App. 701 ; Huyck v. Meador, 24 Ark. 191 ; Franklin v. March, 6 N.H. 364 ; Hussey v. Winslow, 59 Me. 170 ; Russell v. Whipple, 2 Cowen, 536; Kraft v. Thomas, 123 Ind. 513 ; Cummings Manning v. Gassett, 19 Vt. 308 . (3) The action is in an action "upon any writing, whether sealed or unsealed, for the payment of money or property," within the meaning of the first subdivision of Sec. 1888, R.S. 1909. Ball v. Cotton Press Co., 141 Mo. App. 26 ; Shelton v. Wyman, 1 Mo. App. 130 ; Reyburn v. Casey, 29 Mo. 129 , 31 Mo. 252 ; Bridges v. Stephens, 132 Mo. 525 ; Howe v. Mittelberg, 96 Mo. App. 490 ; Knisely v. Leathe, 256 Mo. 341 ; Moorman v. Sharp, 35 Mo. 283 ; Rowsey v. Lynch, 61 Mo. 560 ; Curtis v. Sexton, 201 Mo. 217 ; Parker-Washington Co. v. Dennison, 267 Mo. 199 ; De Vay v. Dunlap, 7 Ind. App. 690 ; Norton v. Brophy, 56 Ill. App. 661 ; J. Jassoy Co. v. Horn, 64 Ill. 379 ; Wells Lumber Co. v. Dunfee, 170 Ill. App. 475 ; Long v. Straus, 107 Ind. 94 . Julius R. Nolte and J.E. Hereford for respondents. (1) The cause of action at bar is barred because the instrument sued upon does not contain a promise to pay or words that imply a promise without the aid of parol evidence. If any other evidence than the writing has to be resorted to to make out a case the period of limitation is five years. Menefee v. Arnold, 51 Mo. 539 ; Carr v. Thompson, 67 Mo. 476 ; Quattrochi v. Bank, 89 Mo. App. 509 . (2) As between plaintiff and defendants the instrument sued upon is not such a writing as is contemplated by the first clause of our ten-year Statute of Limitations. There is no promise, express or implied, to pay money or property to plaintiff, and to establish such promise if such existed evidence aliunde must be sought. This is the test to determine under what Statute of Limitations a given instrument may fall. Babler v. Rhea, 202 S.W. 606; Parker-Washington v. Dennison, 267 Mo. 199 , 206.

Opinion of the Court

St. Louis Court of Appeals. The judgment was affirmed. ReyNolds, P. J., dissented and certified that he deemed the opinion to be in conflict with certain decisions of this court. The case was transferred here. [Lehner v. Roth, 227 S. W. 833, 229 S. W. 232.]

For the facts we refer to the opinion of the Court of Appeals. A consideration of the record and the two opinions and the additional authorities cited in this court produces the conviction that the Court of Appeals reached the correct result. The decisions cited in the dissenting opinion are not in point. In each of them the writing considered contained language which expressly stated an obligation to pay, or facts from which such an obligation arose as an implication of law. For this reason each of these writings was held to be £‘a writing for the payment of money.” The same thing is true of the additional decisions cited in the brief filed here. It is not *177 true of the writing in this case. As the Court of Appeals pointed out, this writing more resembles a hill of ex-chang’e than anything else. Appellant does not rely upon it as such an instrument, and could not (Adams v. Darby & Barksdale, 28 Mo. l. c. 165) even if the liability of the drawer of such a bill, after the drawee’s failure to pay, arises out of the hill rather than the original indebtedness, if such there was. There is no promise to pay expressed in the writing and no facts stated which give rise to an implication of any such promise. The reasoning of the Court of Appeals on this point is sound. There is nothing in Knisely v. Leathe, 256 Mo. 341, which is out of accord with this conclusion. In that case there was an express promise to pay, on condition. The question in that ease is like that upon an insurance policy. As the Court of Appeals held, the writing in this case is not one “for the payment of money” in the sense of the statute as consistently construed by this court.

The judgment of the circuit court is affirmed.

All concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.