Reith v. Lullmann

11 Mo. App. 254, 1881 Mo. App. LEXIS 36

• Court: Missouri Court of Appeals
• Decided: December 6, 1881
• Status: Published

Opinions

Thompson, J.,

delivered the opinion of the court.

The plaintiff preferred, in the probate court of the city of St. Louis, a claim against the estate of George C. Miller, deceased, evidenced by two certificates of deposit. The following is a copy of one of them; and the other is exactly the same, except that the time to run is eight, instead of six, years: —

“ $197.34. Banking-House of Miller & Karst, )

“ St. Louis, Mo., September 30, 1865.

“ Henry Reith has deposited with us one hundred and ninety-seven and thirty-four one-hundredths dollars, payable to the order of himself on return of this certificate, six years after date, with interest at the rate of no per cent per annum.

[U. S. stamp.] [Signed] Miller & Karst.”

The probate court allowed the claim, and the administrator appealed to the circuit court, where j udgment was again given for the plaintiff.

It appeared in evidence in the circuit court, that George C. Miller was discharged in bankruptcy on July 9, 1868, from all his debts which had accrued prior to the year 1867. The plaintiff, to avoid the effect of this discharge, introduced evidence that Miller had made two distinct promises to pay the debt evidenced by these certificates, once in 1871, and again in 1877. The promise shown to have been made in 1871, must be left out of the question, because it was an oral promise, and, under the rule laid down by this court in Fleming v. Lullmam (ante, p. 104), was barred by the statute of limitations of five years, and hence could not constitute the foundation of a recovery.

The only testimony tending to show a promise to pay the debt in the year 1877, was that of E. A. Howard, who testified that he boarded at the house of the plaintiff and worked for Dr. McLean in that year ; that Mrs. Eeith gave him the two certificates in question, and requested him to collect them of Miller, promising to pay him well if he should succeed in doing so; that he presented the certificates to Miller at the McLean Building in St. Louis, and Miller said: “Tell Harry to come down and I will pay him ; ” that this was the exact language he used, and that the witness never spoke to him about the matter at any other time.

The claim was exhibited for payment in the probate court within five years of the time when this second promise was made; and the only question, therefore, is, whether this was such a promise to pay a barred debt as will support an action against the promisor or his representative. It is not questioned that a promise to pay a debt which has been barred by limitation or discharged in bankruptcy, must, in order to furnish a sufficient foundation for an action, be a distinct and unequivocal promise or undertaking to pay. Cambridge v. Littlefield, 6 Cush. 213; Allen v. Ferguson, 18 Wall. 3; Egbert v. McMichael, 9 B. Mon. 45; Fleming v. Hayne, 1 Stark. 370; Mosely v. Caldwell, 59 Tenn. 208; Shockey v. Mills, 71 Ind. 292; Randige v. Lyman, 124 Mass. —. A mere expression of an intention (Stewart v. Reckless, 24 N. J. L. 429), or an admission of the debt under circumstances which show a willingness to pay it ( Underwood v. Eastman, 18 N. H. 585), is not enough. Neither is it questioned that, if there is a promise to pay depending upon a future contingency, or coupled with a condition, it must be shown that the contingency has happened, or that the condition has been performed. Bank v. Boykin, 9 Ala. 322. The objection made by the defendant to the promise shown in evidence in this case is, that it was not an unconditional promise, but that it was a promise based upon the condition that the plaintiff should come down to the defendant’s office or place of business, to get his money. We think this objection is too refined. The condition of the plaintiff coming down to the office of the deceased to get his money was in itself of little importance. It was merely a statement made to postpone immediate payment and avoid the pressure or annoyance of a dun; or, possibly, because the decedent may have doubted the right of Howard to collect the debt. “ Tell Harry [meaning the plaintiff] to come down and I will pay him,” in our judgment imported an unconditional promise to pay the plaintiff whenever he should make demand in person. If the making of a demand by the plaintiff in person is to be deemed a condition upon which this promise was based, then that condition has been fulfilled by the act of the plaintiff in preferring the debt as a claim against the estate of the debtor.

The judgment of the circuit court is accordingly affirmed.

Judge Bakewell concurs; Judge Lewis is absent.