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Plaintiff's point is that the insertion of the word “negligently” before each matter charged to have been Omitted did not leave to the jury the question of whether such things were omitted, but only whether in the opinion of the jury Such Omissions, or either of them, were negligent. There was no need of inserting the word “negligently” in the places Specified, and the instruction would have met the issues much more fairly and Squarely had it submitteyl the bare question whether the things complained of were or were not done. Hence the instruction cannot be said to be above criticism. But, in View of the fact that in other instructions On both SideS Of the Case the jury were clearly told that the failure to do the things required was negligence, We do not think there is room for holding that the jury may have been misled. [6, 7] The instructions constitute one charge, and should be read as a Whole, and we must assume that the jury considered them carefully and intelligently and construed them reasonably. Barrett V. Delano, 187 MO. App. 501, 174 S. W. 181; Tawney v. United Railways Co., 262 Mo. 602, 172 S. W. 8. [8] However, we cannot look With Such an indulgent eye upon defendants instruction No. 4. It told the jury that if they believed the plaintiff was “guilty of negligence in directing or requesting * * * the driver of the car to speed up and pass the Ford car,” and if they found from the evidence that “such negligence or negligent acts of plaintiff aforesaid, if you find it was negligence, directly contributed to the injury,” etc., their verdict must be for all the defendants. Clearly, this instruction Submitted to the jury the question whether the directing or requesting of the driver to Speed up was negligence, and did not submit the question whether plaintiff did or did not, in fact, direct or request the driver to speed up. And there were no other instructions which could be in any way regarded as having cured this as in the case of instruction H. Indeed, it is not seen how the assumption in the instruction that plaintiff did direct or request the driver to speed up (which was a hotly contested isssue) could be cured by any number of Other instructions. That the instruction did assume the existence of the above-mentioned fact is still further shown by the following. The instruction began by telling the jury that: “The duty of exercising care was not limited to one of the parties to this suit, but that such duty devolved upon all parties hereto, both plaintiff and defendants. Each party, plaintiff and defendants, was under obligation to exercise the highest degree of care and caution in the particulars mentioned in these instructions as

an ordinarily prudent person would exercise under like circumstances.”

[9] It should be observed here that the degree of care required was in no wise the same on plaintiff that it was on the defendants operating the two cars, unless, indeed, it be said that, in directing or requesting the

driver to speed up the plaintiff himself beCame, in a Sense, the driver Of the Car, Or was in control of it, so as to be under the statutory duty to “use the highest degree Of care that a very careful person would use under like or similar circumstances.” Section 12, Subd. 9, Laws 1911, p. 330. Unless by such direction or request plaintiff did come within the statutory definition of a person “operating or controlling an automobile,” he was not under obligation to use the Same degree of care as the driver. Whether or not such a direction or request would impose Such a degree of care upon plaintiff is not under Consideration here. What We are saying is that to tell the jury that all parties, plaintiff and defendants, Were required to use the Same degree of care, without requiring the jury to find that plaintiff directed or requested the driver to Speed up, Was, in effect and in itself, an assumption that plaintiff did direct or request him to speed up, to Say nothing Of any poSSible error involved in the question whether, in making a request of the driver to speed up, a guest Would thereby, to that extent, assume such Control of the car as to bring himself under Obligation to exercise the statutory degree Of Care. Besides, the instruction told the jury that defendants Were required to exercise the highest degree of care that an ordinarily prudent person would exercise, While the Statute says “the highest degree of care of a very careful person.” [10] This instruction further said: “Therefore, before plaintiff can recover in this case, it must appear to your satisfaction from the evidence that his injury, if any, was caused by the negligence of one or more of the defendants without any fault, neglect, or want of ordinary care and prudence on plaintiff’s part. If there was mutual negligence between plaintiff and any of the defendants, plaintiff is not entitled to recover.” Here the instruction says “without any fault, neglect, or Want of Ordinary care and prudence on plaintiff's part.” And while it uses the words “ordinary care” in the latter part of this clause, yet the jury are told that the plaintiff must be without any fault or neglect, and in View of this and the statement in the first part of the instruction that plaintiff must exercise the “highest degree of care and caution,” it is not seen how the jury would understand this last-mentioned phrase “ordinary care” according to its correct meaning, especially where no definition of ordinary care was given anywhere in the case. It is manifest that this instruction did not submit the acutely disputed issue relied upon as a defense, and that by reason of it plaintiff did not have a fair trial. [11] As to defendants' motion to dismiss the appeal, filed on the day the case was set for argument in this Court, and Which on that account We Were Compelled to take with the case, we hold that this case is not like those cited by defendants in Support of their motion, namely: State ex rel. V. Gates, 113 Mo. App. 649, 88 S. W. 640; State ex rel. v. Keuchler, 83 MO. 193; State ex rel. W. Broaddus, 210 Mo. 1, 108 S. W. 544. . In those cases there was no affidavit for appeal filed until after the term had expired. The statute (Section 2040, R. S. Mo. 1909) requires that it shall be filed “during the same term.” The affidavit in the case at bar was filed during the same term, but not, it seems, until after the Order allowing the appeal had been made, though When the Order was made all other steps, including the approval of the appeal bond, had been taken. The proper order is for the affidavit for appeal to precede the allowance thereof. But, since every step required by the statute was taken by appellant, and Within the time required, We do not feel justified in denying the appeal for this irregularity. The judgment is reversed, and the cause remanded for a new trial. All concur.

(199 Mo. App. 432)

ST. JOSEPH & G. I. RY, CO. v. ELWOOD GRAIN CO. (No. 12575.)

(Kansas City Court of Appeals. April 29, 1918.)

1. LIMITATION OF ACTIONS @:53(1) – CONTINUOUS ACCOUNT. When an account is continuous, a running account, and it is fairly inferable from the conduct of the parties while the account was accruing that the whole was to be regarded as one, as in the case of a merchant's account against a customer, none of the items are barred by the statute unless all are. 2. LIMITATION OF ACTIONS @:253(2)—CONTINUOUS ACCOUNT. Where it was the practice of plaintiff railroad to render defendant grain company, from day to day, as service was rendered, an itemized statement, on which defendant would check off items it admitted and pay them by check, designating the items paid, which items plaintiff entered on its books as paid, plaintiff's claim for the items repudiated by defendant was not an Open, continuous account, not being regarded as such by either party. 3. LIMITATION OF ACTIONS @:2(1) — WHAT LAW GOVERNS. Uninfluenced by statute to the contrary, the limitation law of the forum, which governs the remedy, applies. 4. EVIDENCE S->80(1)—LIMITATION LAWS OF SISTER STATE. In the absence of proof as to exceptions to the running of limitation statutes in another state, the court will assume that, in that respect, the law of such state is similar to that of Missouri. 5. LIMITATION OF ACTIONS @:287(1) - ABSENCE FROM STATE. Under Rev. St. 1909, § 1897, tolling statute of limitations while a defendant, resident of the state, is absent therefrom, limitations begin to run when a cause of action against a nonresident accrues. 6. LIMITATION OF ACTIONS @->13—ESTOPPEL TO PLEAD LIMITATIONS. That defendant requested plaintiff to delay suit until certain suits were decided, and that after those suits were decided defendant requested further delay until it could check up plaintiff's bills and ascertain if they were correct, does not estop defendant from pleading


the statute of limitations; defendant's action amounting to merely putting off plaintiff with a request for delay.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

“Not to be officially published.”

Action by the St. Joseph & Grand Island Railway Company against the Elwood Grain Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. E. Dolman and O. E. Shultz, both of St. Joseph, for appellant. R. A. Brown and R. L. Douglas, both of St. Joseph, for respondent.

ELLISON, P. J. Plaintiff’s action is based On an account for demurrage, for freight due from defendant, and for switching service. The cause Was referred to a referee, who found for the plaintiff, $476 for demurrage and $85.04 for freight. The charges for switching were disallowed. The circuit court approved the referee's report, and, judgment "being rendered for plaintiff, defendant appealed.

Plaintiff’s account arose primarily from the building of an elevator at Elwood, Kan., by the defendant near by the tracks of plaintiff's railway. A lengthy contract was drawn between them relating to shipments of grain, and also of a variety of kinds of . material used in the construction of the elevator, and repairs thereon. The contract gave defendant various privileges and rights. Out of this grew plaintiff’s claim. The question in the case involves the statute of limitations of Kansas and MissOuri, and also what constitutes a running account, and, incidentally, whether there is an estoppel against defendant.

This action was begun on the 19th Of September, 1914. The account for demurrage began December 7, 1907 and continued down into 1912, a date within the three-year period of limitation prescribed by the Kansas Statute. The freight item for four cars of sand is dated August 6, 1907. The item for switching was disallowed, and is not in dispute. The limitation period in Kansas is three years, and in this state it is five. The suit having been commenced on the 19th of September, 1914, defendant insists that all items of date more than three years prior to that time are barred by the Kansas Statute, and, as we shall presently see, also by Our Statute. If defendant is COrrect, then the freight charge and the principal part of the demurrage charge Ought not to have been allowed against it. But plaintiff contends that its entire account was one single matter, made up of different items, that is, that it was an Open running a CCOunt, and that the statute of limitations did not begin to run until the date of the last item in 1912, which was less than three years before the Suit

was brought. So this phase of the case depends on the character of the account. [1] The law in this state is that When the account is continuous, “it is a running account, and it is fairly inferable from the conduct of the parties While the account was acCruing that the whole was to be regarded as One, as in the case of a merchant’s account against a customer, none of the items are barred by the statute unless all are.” Ring V. Jamison, 66 Mo. 424, 428; Chadwick v. Chadwick, 115 Mo. 581, 586, 22 S. W. 479; Sidway v. Land & Live Stock Co., 187 Mo. 649, 669, 86 S. W. 150. [2] This leaves to be determined Whether while this claim was accruing, the parties regarded it, and understood it, as constituting One claim, as is the case, for example, Of an Ordinary merchant’s account against a Customer. We think it clear from the evidence showing the conduct of the parties that it WaS not SO underSt00d at that time. For it. appears that it was the practice of the plaintiff to render to defendant from day to day, as the service was had, an itemized statement of What was due the plaintiff; that defendant would take such statements, go over them, and check off the items which it considered it owed and that it proposed to pay. It would then make out its check to plaintiff for Such items, together with a statement of the particular items it was paying, and plaintiff then entered on its books as paid the items SO designated by defendant. It appeared in evidence that the items which defendant repudiated were such aS it insisted it did not OWe under its COntract, and for Various other reasons. It Seems to us apparent that neither of these parties regarded plaintiff’s claim at the time of the transactions upon which it is founded as an Open Continuous account made up of different items constituting one. [3] The evidence in plaintiff's behalf shows conclusively that as each service in suit was performed it was then regarded by plaintiff as an accrued claim, for which a bill Was made out, and payment refused by defendant. It must be borne in mind that the bills made Out and Sent to defendant When the Service was performed were not mere memoranda for the information of the purchaser of an account and a credit, the account to continue on, but they were statements of accounts then due for specific charges and payment then demanded. But though not a running open account whereby the last item Within the period of limitation would save those Older items Which are Without that period, any of plaintiff's claims that are within the period may be recovered, and we must consider the case from that standpoint. The claim originated in Kansas and was to be performed in that state. Uninfluenced by a statute to the contrary, the limitation law of the forum Which governs the remedy applies. But in this state, since the Revision of 1899,

as we shall presently see, we have had a statute to the contrary. Section 1895, R. S. 1909. We must therefore inquire whether plaintiff's claims are barred by the statute of limitations of Kansas, prescribing a period of three years. [4, 5] In this state We have a statute (Section 1897, R. S. 1909) excepting certain situations from the general provisions. It reads as follows: “If at any time when any cause of action herein specified accrues against any person who is a resident of this state, and he is absent therefrom, such action may be commenced within the times herein respectively limited, after the return of such person into the state; and if, after such cause of action shall have accrued, such person depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.”

The Words, “Who is a resident of this State,” were not originally in the act; they were inSerted in 1845. Prior to that time, if the defendant Was not a resident Of the State When the cause of action accrued, the statute did not begin to run until he became a resident of the State. King W. Lane, 7 MO. 241, 37 Am. Tec. 187; Tagart v. Indiana, 15 Mo. 209. But since the insertion of those words, it has been held that the Statute began to run. When the CauSe Of action accrued, although the defendant Was a nonresident. Thomas V. Black, 22 Mo. 330; Scroggs v. Daugherty, 53 Mo. 497; Fike v. Clark, 55 Mo. 105; Orr v. Wilmarth, 95 Mo. 212, 8 S. W. 258. We are not advised as to any exceptions to the running of the Statutes in Kansas, and must therefore asSume the law there is like Ours. Therefore We must hold that, notWithStanding defendant was not a resident of Kansas when plaintiff's cause of action accrued against it, and is not now, yet the three-year statute of that State began to run. When the cause, or causes, of action accrued, thus barring any action in that State on any claim which had accrued m0re than three years before this action Was begun. Now, as above stated, we have had Since the Revision of 1899, a statute (section 1895, R. S. 1909) which reads as follows:

“Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.”

There can be no mistaking the meaning of that Statute and its application to this case. But for such statute the period of limitation in this state, being a matter of remedy, would govern. But the claims older than three years, being plainly barred if the action had been barred in Kansas, must be held to be barred When the action is brought in this state. Handlin V. Burchett, 270 Mo. 114, 192 S. W. 1016; McCoy v. Railroad, 134 Mo. App. 622, 114 S. W. 1124; Deal V. Railroad, 176 Mo. App. 8, 162 S. W. 760; Bemis v. Stanley, 93 Ill. 230; Lloyd v. Perry, 32 Iowa, 144. In the first of those cases Judge Graves, in delivering the unanimous opinion of the Supreme Court, Said: “The cause of action having originated in the state of Iowa, if it was barred in that state, when instituted in this state, there can be no recovery by the plaintiff. Our statute, section 1895, Revised Statutes 1909, quoted in the statement of facts, settles this question, and it is not contended otherwise by distinguished counsel for plaintiff. We start our consideration of the case with this question out of the way. Other questions must abide, the construction of the Iowa laws. This whole matter turns upon the question as to whether or not under the Iowa laws the plaintiff had a live cause of action, and one which could have been enforced in Iowa, at the time he instituted his suit in Missouri. If under the Iowa laws he had lost, the right of action, in Iowa, prior to August 12, 1912 [the date of filing his suit in Missouri], he has no right of action here.” In the McCoy Case the cause of action (personal injury) was barred if it had been brought in Iowa, and we held it to be necessarily barred here; and so in the Deal Case we applied our statute to a case originating in Oklahoma. In the Bemis Case the Supreme Court of Illinois Said (93 Ill. 233) that: “By the enactment of section 20, it was doubtless intended to close the doors of , our courts to the enforcement of stale claims which could not be enforced in the state where the cause of action arose.” The same was decided in the Lloyd Case. There the Iowa statute is similar to ours, except it is made to depend on the fact that the defendant had resided in the foreign state, while ours only requires that the cause of action shall have originated in the foreign state. This difference is of no importance as affecting the application of the decision in this case. The court Said Of the IOWa Statute that there was “no room for construction; the language of the statute is too plain and the law too clearly within it to admit of any doubt as to its construction.” We are cited by plaintiff to Williams v. Railroad, 123 Mo. 573, 27 S. W. 387; but that case was determined several years prior to the enactment of our statute in 1899, and, of course, can have no influence on cases arising since. We are also cited to Gross v. Watts, 206 Mo. 373, 396, 398, 104 S. W. 30, 121 Am. St. Rep. 662. In that case the statute here involved was not construed or mentioned. So We are cited to Yost v. Railroad, 245 Mo. 219, 236-239, 149 S. W. 577. That case involved a commonlaw action arising in the State of Colorado for personal injuries. There was also a statutory action for the same cause, and there Was a Statute of limitation in that State to

the statutory action limiting it to two years. The court held, in an opinion by Judge Blair that, as the action brought was at common law, the limitation on a statutory action did not apply. It is clear that neither of theSe cases affects Handlin v. Burchett, 270 Mo. 114, 192 S. W. 1016, supra.

[6] Plaintiff in its reply pleaded an eStoppel against defendant's right to interpose the statute of limitations, based on the ground that defendant requested delay in bringing the action until Certain Suits Were determined. That after those suits were decided defendant requested that no action be brought until it could check up all bills and ascertain if they were correct, and “that at the inStance and request of the defendant the plaintiff delayed its action on said account, and that by reason of the foregoing facts defendant is now estopped to plead that any portion Of Said account is barred by any statute of limitations.” There is no plea that defendant promised not to plead the Statute; there is nO allegation that defendant agreed to pay the disputed claim if plaintiff would delay beyond the period of limitation; in fact there is no allegation of any facts which Would in any way show that either party had the matter of limitation in View. The utmost that can be allowed in plaintiff's favor to the plea is that defendant put plaintiff off with a request for delay. If this were held to be good the application of the statute would be seriOusly limited; for such requests are urged by all unready debtors. But the evidence relied upon accounts for the meager allegations. No promise Was ShoWn not to plead the statute, and we think the correspondence between the parties in no way shows that plaintiff was being misled. On the contrary, there are reaSonable inferences to be drawn therefrom that plaintiff Was not relying on any requests from defendant. In Monroe v. Herrington, 110 Mo. App. 509, 518, 85 S. W. 1002. Judge Goode, after stating that it had been decided in Bridges v. Stephens, 132 Mo. 524, 34 S. W. 555, that a proper verbal agreement not to plead the statute of limitations was valid, proceeded to discuss the necessary elements Of Such agreement, in the course Of Which he Said that:

“Mere reliance on the debtor's promise to pay if not sued affords no ground for cutting him off from the defense When sued”—citing, among Other cases, Andreae V. Redfield, 98 U. S. 225, 25 L. Ed. 158.

The judgment should be reversed, and the (134 Ark. 167)

cause remanded. All concur.

CATHERINA et al. v. PORTER et al. (No. 363.)

(Supreme Court of Arkansas. May 13, 1918.)



Contract between second mortgagee and

mortgagor defaulting on first mortgage, under which the mortgaged premises were conveyed to a third party for the equal benefit of both contracting parties, both parties to be allowed commissions for making sales of lots in the premises and the surplus after payment of commisSions, first mortgage, etc., to be divided equally between them, gave the second mortgagee a power, coupled with an interest, under which it £uld give a valid option on the whole property.

Appeal from Pulaski 'Chancery Court; Jno. E. Martineau, Chancellor.

Suit by Ben Catherina and C. A. Booher against R. W. Porter and others. From a decree for defendants, plaintiffs appeal. Affirmed.

Ben Catherina and C. A. Booher brought a suit in equity against . R. W. Porter, the Citizens' Investment & Security Company, Fred A. Snodgress, and C. K. Lincoln, the object of which was to have a deed from Booher to Porter declared a mortgage, and alSO to Cancel an option deed given by him to Snodgress for Lincoln.

On March 27, 1911, C. A. Booher borrowed $10,000 from the Walley Savings Bank and to Secure it gave to the bank a deed of trust on 29 blocks, being 239 lots in Booher's addition to the town Of Levy, in Pulaski county, Ark. The money was payable in five annual installments of $2,000 each. BOOher paid the first note, but was unable to pay the second one, which fell due in March, 1913. Under the terms of his loan, this default matured the balance Of the debt. In the meantime, in July, 1912, the Citizens' Investment & Security Company (hereinafter called the Citizens’ Company) had taken a Second mortgage on the property as security for a 'debt of $4,600 due it by Booher. This debt became due July 5, 1913. The first mortgage had been transferred to the Bank Of Commerce, and it was pressing Booher for payment and threatening to foreclose the mortgage. BOOher had no money to pay either Of the debts, and owed the two banks an aggregate sum of $12,600. The Citizens' Company paid the Bank of Commerce its debt of $8,000, and an agreement Was entered into between it and BOOher as follows:

[blocks in formation]

mortgage on above-mentioned property; and whereas, the party of the second part, owes to the Citizens Investment & Security Company, as agents, $4,600, secured by mortgage on the above-mentioned property: “Now, therefore, the party of the second part, being desirous of disposing of the above-mentioned property and paying off said indebtedness, agrees hereby to deed the said property to R. W. Porter, for the benefit of both the first and second parties equally upon the following conditions: The party of the first part shall have the exclusive sale of the property, being allowed a commission of 15 per cent. for making sales of property or parts thereof, and 5 per cent for keeping records and making collections. The party of the second part shall be allowed a commission of 10 per cent. of the above-mentioned commission on any property that he shall sell. . The party of the first part is hereby authorized to sell the property for the price and sum of $200 per lot for the first three months after date hereof, but in case the party of the first part or his agents is unable to sell as many as 20 lots in this addition within the above-mentioned three months, then the party of the first part shall have authority to reduce prices as they see fit, and should the party of the first part be offered as much as $150 a lot for as many as 6 lots to any one person (during the first three months) they shall have the authority to accept in blocks 13, 19, 21, and 25, and also the party of the first part is authorized to accept less than $200 each for single lots in blocks 6, 11, 10, 7, 8, and the west half of block 5. The party of the first part shall have authority to sell the abovementioned lots on terms as follows: $10 cash, and $5 per month on each lot, with per cent. interest, or on terms that are agreeable to the party of the first part. The moneys collected on account of sales in this addition are to be disbursed or disposed of as follows: First for the payment of commissions and collections, then for the payment of taxes, other expenses, including abstract, notary fees, advertising, etc., and also the principal notes above mentioned and the interest thereon, and the parties of the first part and of the second part shall share equally in the moneys, notes, or property which may be left after paying all of the above indebtedness and other expenses. “It is also agreed that the party of the first part shall pay off, or rather take up and carry, the $2,000 or the $8,000 due to the Valley Savings Bank, which amount is now due, but that the said party of the second part shall personally pay all interest due on said amount up to the date of this contract, and the party of the second part agrees to pay personally the interest coupons which are now due to the Citizens' Investment & Security Company, as agents, as interest on the $4,600 mortgage.”

On the same day Booher and wife executed a deed to this property to R. W. Porter, subject to the mortgage of $8,000 in favor of the Walley Savings Bank and the mortgage of $4,600 in favor of the Citizens' Bank. The contract between the Citizens' Company and Booher bears the following assignment signed by Booher:

“For value received, I hereby assign and set over to Ben Catherina all amounts coming to me or that may come to me by the terms of this contract, and I hereby authorize the Citizens' Investment & Security Company to pay the same to said Ben Catherina as same accrues.”

‘The Citizens' Company took charge of the property in August, 1913, and at once directed itself to the sale of the property under

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

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