American Surety Co. v. Fruin-Bambrick Construction Co.
Missouri Court of Appeals
Appeal from St. Louis City Circuit Court. — Row. Eugene McQuilUn, Judge. (1) The trial court erred in declaring the law to the effect that it was not necessary for plaintiff to prove a payment by defendant within the statutory period (five years) of limitation; and that a failure of such proof “will not prevent recovery.” The law in Missouri and elsewhere is otherwise, and places on plaintiff the burden of proof as to such payment to avoid or repel the statute.
Read the full summary
Appeal from St. Louis City Circuit Court. — Row. Eugene McQuilUn, Judge. (1) The trial court erred in declaring the law to the effect that it was not necessary for plaintiff to prove a payment by defendant within the statutory period (five years) of limitation; and that a failure of such proof “will not prevent recovery.” The law in Missouri and elsewhere is otherwise, and places on plaintiff the burden of proof as to such payment to avoid or repel the statute. Regan v. Williams, 185 Mo. 631; Erhart v. D'eitrieh, 118 Mo. 428; Monroe v. Herrington, 110 Mo. App. '513; Keese v. Dewey, 97 N. Y.…
1Opinion of the CourtNortont, J.
This is a suit on an implied contract to reasonably compensate plaintiff for executing *670certain surety bonds at the instance of defendant and for its benefit. Plaintiff recovered and defendant prosecutes the appeal.
The suit, in the first count, proceeds to recover the three last annual installments of the premium on the surety bonds, in quantum meruit, and the matter for consideration presents the question as to whether or not it is competent to look to the contract between the parties to determine the time the several installments .sued for were due. Defendant seems to concede the obligation…
Also in this document: Concurrence.
2Cases cited15 opinions
- Dermott v. JonesSupreme Court of the United States · 1865
- Williams v. Chicago, Santa Fe & California Railway Co.Supreme Court of Missouri · 1892
- Mansur v. BottsSupreme Court of Missouri · 1883
- Rude v. MitchellSupreme Court of Missouri · 1888
- Plummer v. TrostSupreme Court of Missouri · 1884
10 more not listed; retrieve them via the Exa API.
3Cited by18 opinions
- Oliver L. Taetz, Inc. v. GroffSupreme Court of Missouri · 1953
- United States Potash Co. v. McNuttCourt of Appeals for the Tenth Circuit · 1934
- Service Construction Company v. NicholsMissouri Court of Appeals · 1964
- Sandbothe v. WilliamsMissouri Court of Appeals · 1977
- Bucknam v. BucknamSupreme Court of Missouri · 1941
13 more not listed; retrieve them via the Exa API.