Smith v. Zimmerman , 1892 Mo. App. LEXIS 470 ( 1892 )

Smith, P. J.

This was a suit commenced on July 3, 1884, on a promissory note dated February 24,1873, due thirty days after date, for the sum of $507, with a number of credits thereon indoi’sed, the last of which was for $50, date July 4, 1874. The defense-was the statute of limitations. The plaintiff had. judgment, and the defendant appeals.

The defendant insists that the trial court erred in-the admission of certain evidence, but upon examination of the motion for the new trial this error is not made one of the grounds therefor, so that we cannot, review the action' of the court in that respect. Although the exception to the evidence was saved, it was not. reviewed in the motion for a new trial, and must, therefore, be deemed a waiver. Kinion v. Railroad, 39 Mo. App. 574; Bevin v. Powell, 11 Mo. App. 216, and. cases there cited.

The cause was submitted to the court sitting as a. jury. The facts were passed upon by the circuit court, and they are, therefore, incontrovertible here. This court has only the power to review the law declared by that court, and as it was intrusted with both facts and. law we must assume the facts to be as that court found them to be. Swayze v. Bride, 34 Mo. App. 414; Gains v. Fender, 82 Mo. 509; Hamilton v. Boggess, 63 Mo. 233.

The court at the instance of the plaintiff declared the law of the case to be that even though the note on its face is barred by the statute of limitations, yet the evidence shows that a credit indorsement was made on said note by O. M. Smith, the payee, at a time less than ten years after the execution of said note, and less than ten years before the bringing of this suit; the credit indorsement having been made at a time when it was against the interest of the payee to make it, the presumption is that actual payment was made at that time, and this is sufficient evidence to take the note out of the operation of the statute. The rule of law announced by this instruction is unexceptionably correct. Loewer v. Haug, 20 Mo. App. 163; Goddard v. Williamson, 72 Mo. 131; Carter v. Carter, 44 Mo. 195.

No error is perceived in the action of the court in the refusing of defendant’s instructions.

The judgment seems to be for the right party, and must be affirmed.

All concur.