Roberts v. Neale , 134 Mo. App. 612 ( 1908 )

ELLISON, J.

This action arose on account of certain alleged over-payments on a promissory note. The judgment in the trial court was for the plaintiff.

Since the verdict was for the plaintiff we will assume to be facts those things which the evidence in his behalf tends to prove. It appears that a note for $1,500, dated the 8th of December, 1886, due in twelve months, with ten per cent compound interest, was given by plaintiff and a comaker, together with two others as sureties, to John Neale; that Neale died in March, 1887, and this defendant, his widow, became the owner of the note in 1891. There were various payments made to defendant on the note until finally a payment made in December, 1897, fully discharged it. But in ignorance of the fact that the note had been fully discharged, plaintiff made various other payments to defendant from time to time, beginning in March, 1898, and continuing on down to August 25,1902. There was another transaction occurring in January, 1905, wherein it was alleged that $578.60 was also paid. But this item was dismissed by plaintiff at the trial and need not be further noticed. This action was begun on the 5th of October, 1905, within five years of the last payment,— .the 25th of August, 1902, — which was the only payment made within five years prior to the date of bringing the suit. The chief question is whether the payments prior to the last are barred. Plaintiff contends that they were a series of payments on one transaction and are an open account, the last item, being inside of the limitation period, connecting back and saving those beyond that period. Or, if not an account, he insists that it was a series of receipts of money on account of one transaction, which were moneys had and received and should be looked upon as an aggregate, the last receipt making up the total sum, as one- demand. Defendant’s theory is that each separate payment was a separate transaction, with the statute running on each from the time of its- payment.

In this State it is not necessary in order that items within the statutory period may draw inside the items outside that period, that the account should be mutual with items for and against either party. The account may do this even though it be one-sided, with all the items against one party. [Chadwick v. Chadwick, 115 Mo. 581.] And, therefore, where it is fairly inferable from the conduct of the parties, while the account is accruing, that it is to be taken as one, it will be so regarded by the courts. [Ib.] And the question whether it is so inferable is one for the jury. [Thompson v. Brown, 50 Mo. App. 320.] In this case the evidence clearly shows that the payments were made at different times in relation to the one thing, — the note,— and that they were necessarily regarded by the parties as making one aggregate or single amount, viz.: a sum sufficient to discharge the note. And the jury, under proper instructions, has so found.

Defendant, as already stated, considers that each payment made a separate cause of action and that they could not be tacked together. He therefore insisted in the trial court that each payment should have been declared upon in a separate count of the petition. We think the position not sound. If the nature of plaintiff’s claim were such that no question of limitation were involved, — if the different payments were all within the period of limitation, — and only a question of pleading were in dispute, would anyone say that the sum of the several payments could not be placed in one count? If the several payments were subject to unification in that instance, the fact that some fell without and some within the statute would not affect the matter.

An account, not mutual but one-sided, can well be likened to money had and received for one by another. An action for money had and received may arise when one receives money not his, but which, rightfully, he either should not have received or if he properly received it should have paid over to the other. In one sense different payments to one for another would constitute an account, each payment being an item; yet the action would essentially be for money had and received. Suppose that these payments were on one transaction and were made so that some of them were- older than the period of limitations and others within the period,— would not the aggregate constitute"a single demand? And as each successive paymepk" was made would it not be merely enlarging the single demand, until the last one, within the period -of limitation, would make the total of a single claiaff the subject of a single action? It has been so decided. [Kearns v. Heitman, 104 N. C. 332, 10 S. E. 467.

What we/have written disposes of other points made by defendant which we care to notice in detail. The ruling's on the admission of evidence are not subject to the criticism made by defendant. The entire discussion a/ to the action of the court on demurrers and motions filed by defendant has been answered by the for/going. Besides, by answering, motions to strike out any) demurrers are waived except where the claim is that no cause of action is stated, and that one was stated re we entertain no doubt. The instructions properly ;vabn fitted the case and the evidence was sufficient to l/tpli old the verdict as to whether defendant owned the note instead of her son as claimed by her. An examination of the entire record, satisfies ns that we have no ground for interference. The judgment is therefore affirmed.

All concur.