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word “negligently” before each matter charg- came, in a sense, the driver of the car, or

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Plaintiff's point is that the insertion of the driver to speed up the plaintiff himself be

” a , ed to have been omitted did not leave to the was in control of it, so as to be under the jury the question of whether such things were statutory duty to "use the highest degree of omitted, but only whether in the opinion of care that a very careful person would use the jury such omissions, or either of them, under like or similar circumstances." Secwere negligent. There was no need of insert- tion 12, subd. 9, Laws 1911, p. 330. Unless ing the word “negligently" in the places speci- by such direction or request plaintiff did fied, and the instruction would have met the come within the statutory definition of a issues much more fairly and squarely had it person "operating or controlling an automosubmittel the bare question whether the bile," he was not under obligation to use the things complained of were or were not done. same degree of care as the driver. Whether Hence the instruction cannot be said to be or not such a direction or request would imabove criticism. But, in view of the fact that pose such a degree of care upon plaintiff is in other instructions on both sides of the case not under consideration here. What we are the jury were clearly told that the failure to saying is that to tell the jury that all pardo the things required was negligence, we do ties, plaintiff and defendants, were required not think there is room for holding that the to use the same degree of care, without rejury may have been misled.

quiring the jury to find that plaintiff direct[6, 7] The instructions constitute one ed or requested the driver to speed up, was, charge, and should be read as a whole, and in effect and in itself, an assumption that we must assume that the jury considered them plaintiff did direct or request him to speed carefully and intelligently and construed up, to say nothing of any possible error inthem reasonably. Barrett v. Delano, 187 Mo. volved in the question whether, in making a App. 501, 174 S. W. 181; Tawney v. United request of the driver to speed up, a guest Railways Co., 262 Mo. 602, 172 S. W. 8. would thereby, to that extent, assume such

[8] However, we cannot look with such an control of the car as to bring himself under indulgent eye upon defendants' instruction obligation to exercise the statutory degree No. 4. It told the jury that if they believed of care. Besides, the instruction told the the plaintiff was "guilty of negligence in di- jury that defendants were required to exerrecting or requesting * * the driver cise the highest degree of care that an orof the car to speed up and pass the Ford car,” dinarily prudent person would

would exercise, and if they found from the evidence that while the statute says "the highest degree of "such negligence or negligent acts of plain- care of a very careful person." tiff aforesaid, if you find it was negli- [10] This instruction further said: gence, directly contributed to the injury," "Therefore, before plaintiff can recover in etc., their verdict must be for all the de- this case, it must appear to your satisfaction fendants. Clearly, this instruction sub- from the evidence that his injury, if any, was

caused by the negligence of one or more of the mitted to the jury the question whether the defendants without any fault, neglect, or want directing or requesting of the driver to speed of ordinary care and prudence on plaintiff's up was negligence, and did not submit the part. . If there was mutual negligence between question whether plaintiff did or did not, in plaintiff and any of the defendants, plaintiff is

not entitled to recover.” fact, direct or request the driver to speed up.

Here the instruction says "without any And there were no other instructions which fault, neglect, or want of ordinary care and could be in any way regarded as having cured this as in the case of instruction H. Indeed, uses the words "ordinary care” in the latter

prudence on plaintiff's part.” And while it it is not seen how the assumption in the in- part of this clause, yet the jury are told that struction that plaintiff did direct or request the plaintiff must be without any fault or the driver to speed up (which was a hotly con- neglect, and in view of this and the statetested isssue) could be cured by any number ment in the first part of the instruction that of other instructions. That the instruction plaintiff must exercise the “highest degree did assume the existence of the above-men- of care and caution,” it is not seen how the tioned fact is still further shown by the fol- jury would understand this last-mentioned

The instruction began by telling the phrase "ordinary care” according to its corjury that:

rect meaning, especially where no definition " to one of the parties to this suit, but that such of ordinary care was given anywhere in the duty devolved upon all parties hereto, both case. It is manifest that this instruction did plaintiff and defendants. Each party, plaintiff not submit the acutely disputed issue relied and defendants, was under obligation to exercise the highest degree of care and caution in the upon as a defense, and that by reason of it particulars mentioned in these instructions as plaintiff did not have a fair trial. an ordinarily prudent person would exercise [11] As to defendants' motion to dismiss under like circumstances.”

the appeal, filed on the day the case was [9] It should be observed here that the de- set for argument in this court, and which on gree of care required was in no wise the that account we were compelled to take with same on plaintiff that it was on the defend- the case, we hold that this case is not like ants operating the two cars, unless, indeed, those cited by defendants in support of their it be said that, in directing or requesting the motion, namely: State ex rel. v. Gates, 113 Mo. App. 649, 88 S. W. 640; State ex rel. v., the statute of limitations; defendant's action Keuchler, 83 Mo. 193; State ex rel. v. Broad- amounting to merely putting off plaintiff with

a request for delay. dus, 210 Mo. 1, 108 S. W. 544. In those cases there was no affidavit for appeal filed until Appeal from

from Circuit Court, Buchanan after the term had expired. The statute (sec-County; Thomas B. Allen, Judge. tion 2040, R. S. Mo. 1909) requires that it "Not to be officially published." shall be filed “during the same term." The Action by the St. Joseph & Grand Island affidavit in the case at bar was filed during Railway Company against the Elwood Grain the same term, but not, it seems, until after Company. From a judgment for plaintiff, the order allowing the appeal had been made, defendant appeals. Reversed and remanded. though when the order was made all other

J. E. Dolman and 0. E. Shultz, both of St. steps, including the approval of the appeal Joseph, for appellant. R. A. Brown and R. bond, had been taken. The proper order is L. Douglas, both of St. Joseph, for respondfor the affidavit for appeal to precede the

he

ent. allowance thereof. But, since every step required by the statute was taken by appel

ELLISON, P. J. Plaintiff's action is based lant, and within the time required, we do not feel justified in denying the appeal for this on an account for demurrage, for freight irregularity.

due from defendant, and for switching servThe judgment is reversed, and the cause ice. The cause was referred to a referee, remanded for a new trial. All concur.

who found for the plaintiff, $476 for demurrage and $85.04 for freight. The charges

for switching were disallowed. The circuit (199 Mo. App. 432)

court approved the referee's report, and, , ST. JOSEPH & G. I. RY. CO. v. ELWOOD judgment 'being rendered for plaintiff, deGRAIN CO. (No. 12575.)

fendant appealed. (Kansas City Court of Appeals. Missouri. Plaintiff's account arose primarily from April 29, 1918.)

the building of an elevator at Elwood, Kan., 1. LIMITATION OF ACTIONS Om 53(1) -- CON- by the defendant near by the tracks of TINUOUS ACCOUNT.

plaintiff's railway. A lengthy contract was When an account is continuous, a running drawn between them relating to shipments account, and it is fairly inferable from the con- of grain, and also of a variety of kinds of dụct of the parties while the account was accruing that the whole was to be regarded as material used in the construction of the eleone, as in the case of a merchant's account vator, and repairs thereon. The contract against a customer, none of the items are bar- gave defendant various privileges and rights. red by the statute unless all are. 2. LIMITATION OF ACTIONS 53(2)—CONTIN-Out of this grew plaintiff's claim. The quesVOUS ACCOUNT.

tion in the case involves the statute of limWhere it was the practice of plaintiff rail-itations of Kansas and Missouri, and also road to render defendant grain company, from what constitutes a running account, and, day to day, as service was rendered, an itemized statement, on which defendant would check off incidentally, whether there is an estoppel items it admitted and pay them by check, des against defendant. ignating the items paid, which items plaintiff

This action was begun on the 19th of Sepentered on its books as paid, plaintiff's claim for the items repudiated by defendant was not an tember, 1914. The account for demurrage open, continuous account, not being regarded as began December 7, 1907 and continued down such' by either party.

into 1912, a date within the three-year pe3. LIMITATION OF ACTIONS O2(1) WHAT riod of limitation prescribed by the Kansas LAW GOVERNS. Uninfluenced by statute to the contrary, the

statute. The freight item for four cars of limitation law of the forum, which governs sand is dated August 6, 1907. The item for the remedy, applies.

switching was disallowed, and is not in dis4. EVIDENCE Om 80(1)—LIMITATION LAWS OF pute. The limitation period in Kansas is SISTER STATE.

In the absence of proof as to exceptions to three years, and in this state it is five. The the running of limitation statutes in another suit having been commenced on the 19th of state, the court will assume that, in that re- September, 1914, defendant insists that all spect, the law of such state is similar to that items of date more than three years prior of Missouri. 5. LIMITATION OF ACTIONS O 87(1) AB

to that time are barred by the Kansas statSENCE FROM STATE.

ute, and, as we shall presently see, also by Under Rev. St. 1909, § 1897, tolling statute our statute. If defendant is correct, then of limitations while a defendant, resident of the state, is absent therefrom, limitations begin the freight charge and the principal part of to run when a cause of action against a non- | the demurrage charge ought not to have been resident accrues.

allowed against it. But plaintiff contends 6. LIMITATION OF ACTIONS C13—ESTOPPEL that its entire account was one single matTO PLEAD LIMITATIONS.

That defendant requested plaintiff to delay ter, made up of different items, that is, that suit until certain suits were decided, and that it was an open running account, and that the after those suits were decided defendant re- statute of limitations did not begin to run quested further delay until it could check up until the date of the last item in 1912, which plaintiff's bills and ascertain if they were correct, does not estop defendant from pleading was less than three years before the suit

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was brought. So this phase of the case de-, as we shall presently see, we have had a pends on the character of the account. statute to the contrary. Section 1895, R. S.

[1] The law in this state is that when the 1909. We must therefore inquire whether account is continuous, “it is a running ac- plaintiff's claims are barred by the statute of count, and it is fairly inferable from the con- limitations of Kansas, prescribing a period duct of the parties while the account was ac- of three years. cruing that the whole was to be regarded as [4, 5] In this state we have a statute (secone, as in the case of a merchant's account tion 1897, R. S. 1909) excepting certain situaagainst a customer, none of the items are bar- tions from the general provisions. It reads red by the statute unless all are.” Ring v.

v as follows: Jamison, 66 Mo. 424, 428; Chadwick v. Chad

"If at any time when any cause of action wick, 115 Mo. 581, 586, 22 S. W. 479; Sidway herein specified accrues against any person who V. Land & Live Stock Co., 187 Mo. 649, 669, 86 is a resident of this state, and he is absent

therefrom, such action may be commenced withS. W. 150.

in the times herein respectively limited, after [2] This leaves to be determined whether the return of such person into the state; and while this claim was accruing, the parties if, after such cause of action shall have acregarded it, and understood it, as constitut- crued, such person depart

from and reside out

of this state, the time of his absence shall not ing one claim, as is the case, for example, of be deemed or taken as any part of the time liman ordinary merchant's account against a ited for the commencement of such action.” customer. We think it clear from the evi. dence showing the conduct of the parties were not originally in the act; they were in

The words, "who is a resident of this state," that it was not so understood at that time. For it appears that it was the practice of serted in 1845. Prior to that time, if the de

fendant was not a resident of the state when the plaintiff to render to defendant from the cause of action accrued, the statute did day to day, as the service was had, an item- not begin to run until he became a resident of day to day, as the service was had, an item- the cause of action accrued, the statute did ized statement of what was due the plain- the state. King v. Lane, 7 Mo. 241, 37 Am. tiff ; that defendant would take such state- Dec. 187; Tagart v. Indiana, 15 Mo. 209. But ments, go over them, and check off the items since the insertion of those words, it has been which it considered it owed and that it pro- held that the statute began to run when the posed to pay. It would then make out its check to plaintiff for such items, together cause of action accrued, although the defendwith a statement of the particular items it ant was a nonresident. Thomas v. Black, 22 was paying, and plaintiff then entered on its Mo. 330; Scroggs v. Daugherty, 53 Mo. 497 ; was paying, and plaintiff then entered on its Fike v. Clark, 55 Mo. 105; Orr v. Wilmarth, books as paid the items so designated by de 95 Mo. 212, 8 'S. W. 258. We are not advised fendant. It appeared in evidence that the items which defendant repudiated were such as to any exceptions to the running of the

statutes in Kansas, and must therefore asas it insisted it did not owe under its con

sume the law there is like ours. Therefore tract, and for various other reasons. It seems to us apparent that neither of these we must hold that, notwithstanding defendparties regarded plaintiff's claim at the time ant was not a resident of Kansas when plainof the transactions upon which it is founded tiff's cause of action accrued against it, and as an open continuous account made up of state began to run when the cause, or causes,

is not now, yet the three-year statute of that different items constituting one. [3] The evidence in plaintiff's behalf shows that state on any claim which had accrued

of action accrued, thus barring any action in conclusively that as each service in suit was performed it was then regarded by plaintiff begun. Now, as above stated, we have had

more than three years before this action was as an accrued claim, for which a bill was since the Revision of 1899, a statute (section made out, and payment refused by defendant. It must be borne in mind that the bills 1895, R. S. 1909) which reads as follows:

“Whenever a cause of action has been fully made out and sent to defendant when the barred by the laws of the state, territory, or service was performed were not mere memo- country in which it originated, said bar shall randa for the information of the purchaser be a complete defense to any action thereon, of an account and a credit, the account to brought in any of the courts of this state.” continue on, but they were statements of There can be no mistaking the meaning of accounts then due for specific charges and that statute and its application to this case. payment then demanded. But though not a But for such' statute the period of limitation running open account whereby the last item in this state, being a matter of remedy, would within the period of limitation would save govern, But the claims older than three those older items which are without that years, being plainly barred if the action had period, any of plaintiff's claims that are with been barred in Kansas, must be held to be in the period may be recovered, and we must barred when the action is brought in this consider the case from that standpoint. The state. Handlin v. Burchett, 270 Mo. 114, 192 claim originated in Kansas and was to be S. W. 1016; McCoy v. Railroad, 134 Mo. App. performed in that state. Uninfluenced by a 622, 114 S. W. 1124; Deal v. Railroad, 176 statute to the contrary, the limitation law of Mo. App. 8, 162 S. W. 760; Bemis v. Stanley, the forum which governs the remedy applies. 93 Ill. 230; Lloyd v. Perry, 32 Iowa, 144. In But in this state, since the Revision of 1899, the first of those cases Judge Graves, in delivering the unanimous opinion of the Su-, the statutory action limiting it to two years. preme Court, said:

The court held, in an opinion by Judge Blair “The cause of action having originated in that, as the action brought was at common the state of Iowa, if it was barred in that law, the limitation on a statutory action did state, when instituted in this state, there can be po recovery by the plaintiff. Our statute, not apply. It is clear that neither of these section 1895, Revised Statutes 1909, quoted in cases affects Handlin v. Burchett, 270 Mo. the statement of facts, settles' this question, 114, 192 S. W. 1016, supra. and it is not contended otherwise by distinguished counsel for plaintiff. We start our con

[6] Plaintiff in its reply pleaded an estopsideration of the case with this question out pel against defendant's right to interpose the of the way. Other questions must abide the statute of limitations, based on the ground construction of the Iowa laws. This whole that defendant requested delay in bringing matter turns upon the question as to whether the action until certain suits were determinor not under the Iowa laws the plaintiff had a the action until certain suits were determinlive cause of action, and one which could have ed. That after those suits were decided debeen enforced in Iowa, at the time he instituted fendant requested that no action be brought his suit in Missouri. If under the Iowa laws he had lost the right of action, in Iowa, prior until it could check up all bills and ascertain to August 12, 1912 [the date of filing his suit if they were correct, and “that at the inin Missouri], he has no right of action here.” stance and request of the defendant the plain

In the McCoy Case the cause of action (per- tiff delayed its action on said account, and sonal injury) was barred if it had been that by reason of the foregoing facts defendbrought in Iowa, and we held it to be neces- ant is now estopped to plead that any portion sarily barred here; and so in the Deal Case of said account is barred by any statute of we applied our statute to a case originating limitations.” There is no plea that defendant in Oklahoma. In the Bemis Case the Su-promised not to plead the statute; there is preme Court of Illinois said (93 Ill. 233) no allegation that defendant agreed to pay that:

the disputed claim if plaintiff would delay "By the enactment of section 20, it was beyond the period of limitation; in fact there doubtless intended to close the doors of our is no allegation of any facts which would in courts to the enforcement of stale claims which could not be enforced in the state where the any way show that either party had the matcause of action arose.”

ter of limitation in view. The utmost that The same was decided in the Lloyd Case. can be allowed in plaintiff's favor to the plea There the Iowa statute is similar to ours, is that defendant put plaintiff off with a reexcept it is made to depend on the fact that quest for delay. If this were held to be good the defendant had resided in the foreign the application of the statute would be seristate, while ours only requires that the cause ously limited; for such requests are urged by of action shall have originated in the foreign all unready debtors. But the evidence relied state. This difference is of no importance as upon accounts for the meager allegations. No affecting the application of the decision in promise was shown not to plead the statute, this case. The court said of the Iowa stat- and we think the correspondence between the ute that there was “no room for construc- parties in no way shows that plaintiff was tion; the language of the statute is too plain being misled. On the contrary, there are reaand the law too clearly within it to admit of sonable inferences to be drawn therefrom any doubt as to its construction.” We are that plaintiff was not relying on any requests cited by plaintiff to Williams v. Railroad, 123 from defendant. In Monroe v. Herrington, Mo. 573, 27 S. W. 387; but that case was de- 110 Mo. App. 509, 518, 85 S. W. 1002. Judge termined several years prior to the enactment Goode, after stating that it had been decided of our statute in 1899, and, of course, can in Bridges v. Stephens, 132 Mo. 524, 34 S. W. have no influence on cases arising since. We 555, that a proper verbal agreement not to are also cited to Gross v. Watts, 206 Mo. 373, plead the statute of limitations was valid, 396, 398, 104 S. W. 30, 121 Am. St. Rep. 662. proceeded to discuss the necessary elements In that case the statute here involved was of such agreement, in the course of which he not construed or mentioned. So we are cited said that: to Yost v. Railroad, 245 Mo. 219, 236–239, 149

"Mere reliance on the debtor's promise to pay S. W. 577. That case involved a common-off from the defense when sued”-citing, among

if not sued affords no ground for cutting him law action arising in the state of Colorado other cases. Andreae v. Redfield, 98 U. S. for personal injuries. There was also a stat-225, 25 L. Ed. 158. utory action for the same cause, and there The judgment should be reversed, and the was a statute of limitation in that state to cause remanded. All concur.

(134 Ark. 167)

mortgage on above-mentioned property; and CATHERINA et al. v. PORTER et al. whereas, the party of the second part owes to (No. 363.)

the Citizens' Investment & Security Company,

as agents, $4,600, secured by mortgage on the (Supreme Court of Arkansas. May 13, 1918.) above-mentioned property : POWERS 27POWER COUPLED WITH IN- being desirous of disposing of the above-men

“Now, therefore, the party of the second part, TEREST-AUTHORITY TO GIVE OPTION. Contract between second mortgagee and

tioned property and paying off said indebted

ness, agrees hereby to deed the said property to mortgagor defaulting on first mortgage, under R. W. Porter, for the benefit of both the first which the mortgaged premises were conveyed to and second parties equally upon the following a third party for the equal benefit of both con- conditions: The party of the first part shall tracting parties, both parties to be allowed com- have the exclusive sale of the property, being missions for making sales of lots in the premis- allowed a commission of 15 per cent. for makes and the surplus after payment of commis- ing sales of property or parts thereof, and 5 sions, first mortgage, etc., to be divided equally per cent. for keeping records and making colbetween them, gave the second mortgagee, a lections. The party of the second part shall power coupled with an interest, under which be allowed a commission of 10 per cent. of the it could give a valid option on the whole prop- above-mentioned commission on any property erty.

that he shall sell. . The party of the first part Appeal from Pulaski Chancery Court; is hereby authorized to sell the property for Jno. E. Martineau, Chancellor.

the price and sum of $200 per lot for the first

three months after date hereof, but in case the Suit by Ben Catherina and C. A. Booher party of the first part or his agents is unable against R. W. Porter and others. From a to sell as many as 20 lots in this addition withdecree for defendants, plaintiffs appeal. Af- in the above-mentioned three months, then the

party of the first part shall have authority to firmed.

reduce prices as they see fit, and should the Ben Catherina and C. A. Booher brought a party of the first part be offered as much as

$150 a lot for as many as 6 lots to any one suit in equity against · R. W. Porter, the person (during the first three months) they Citizens' Investment & Security Company, shall have the authority to accept in blocks 13, Fred A. Snodgress, and C. K. Lincoln, the 19, 21, and 25, and also the party of the first object of which was to have a deed from each for single lots in blocks 6, 11, 10, 7, 8,

part is authorized to accept less than $200 Booher to Porter declared a mortgage, and and the west half of block 5. The party of the also to cancel an option deed given by him first part shall have authority to sell the aboveto Snodgress for Lincoln.

mentioned lots on terms as follows: $10 cash,

per

and $5 per month on each lot, with On March 27, 1911, C. A. Booher borrowed cent. interest, or on terms that are agreeable $10,000 from the Valley Savings Bank and to the party of the first part. The moneys colto secure it gave to the bank a deed of trust lected on account of sales in this addition are on 29 blocks, being 239 lots in Booher's ad- for the payment of commissions and collections,

1 dition to the town of Levy, in Pulaski coun- then for the payment of taxes, other expenses, ty, Ark.

The money was payable in five including abstract, notary fees, advertising, etc., annual installments of $2,000 each. Booher and also the principal notes above mentioned

and the interest thereon, and the parties of paid the first note, but was unable to pay the the first part and of the second part shall share second one, which fell due in March, 1913. equally in the moneys, notes, or property which Under the terms of his loan, this default may be left after paying all of the above in

debtedness and other expenses. matured the balance of the debt. In the

"It is also agreed that the party of the first meantime, in July, 1912, the Citizens' Invest- part shall pay off, or rather take up and carment & Security Company (hereinafter called ry, the $2,000 or the $8,000 due to the Valley the Citizens' Company) had taken a second Savings Bank, which amount is now due, but

that the said party of the second part shall mortgage on the property as security for a personally pay all interest due on said amount debt of $4,600 due it by Booher. This debt up to the date of this contract, and the party of became due July 5, 1913. The first mortgage the second part agrees to pay personally the had been transferred to the Bank of Com-izens Investment & Security Company, as

interest_coupons which are now due to the Citmerce, and it was pressing Booher for pay- agents, as interest on the $4,600 mortgage." ment and threatening to foreclose the mort

On the same day Booher and wife executgage. Booher had no money to pay either ofed a deed to this property to R. W. Porter, the debts, and owed the two banks an aggre- subject to the mortgage of $8,000 in favor of gate sum of $12,600. The Citizens' Company the Valley Savings Bank and the mortgage paid the Bank of Commerce its debt of $8,- of $4,600 in favor of the Citizens' Bank. The 000, and an agreement was entered into be contract between the Citizens' Company and

, tween it and Booher as follows:

Booher bears the following assignment “This agreement made and entered into at Little Rock, Ark., this 26th day of August, signed by Booher: 1913, by and between Citizens' Investment & "For value received, I hereby assign and set Security Company, party of the first part, and over to Ben Catherina all amounts coming to C. A. Booher, party of the second part, wit me or that may come to me by the terms of this nesseth:

contract, and I hereby authorize the Citizens' "That whereas, the party of the second part Investment & Security Company to pay the is the owner of the following described property same to said Ben Catherina as same accrues." in Booher's addition to Argenta, Ark., to wit: The Citizens' Company took charge of the [Here follows a description of the property]; and whereas, the party of the second part owes property in August, 1913, and at once directthe Valley Savings Bank $8,000, secured by led itself to the sale of the property under

.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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