author: GRAVES,. J.

text:
    CARY M. KEYS et al., Appellants, v. ESTATE OF CARY M. KEYS, Jr.; GEORGE R. HENDERSON, Administrator ad litem.

    Division One,
    February 25, 1909.
    1. ADMINISTRATION: Filing Claim: Sunday Last Day. Where the last day for filing a claim against an estate of decedent falls on Sunday, the claimants, under the statute, have all of the following Monday in which to file it.
    2. -: -: ---: Action of Court. If a claim is filed within the statutory time with the probate court, it can make no difference as to the timeliness of the filing when the court acted upon it.
    3. -: -: -: Presentation. A filing of a claim with the cierk is a presentation of it to the court. The word “presentation” as used in the statute does not mean that there should be an actual presentation of the claim to the judge and a hearing thereon. If the claim against decedent’s estate is actually lodged with the court, through the file mark of the clerk or otherwise, there is a sufficient presentation to meet the requirements of the law. [Disapproving, on this point, majority opinion in Savings Bank v. Burgin, 73 Mo. App. 108.]
    4. INVALID CAUSE OF ACTION: Indorsement of Notes: Suit on Account. A commission firm would advance to a partnership dealing in cattle, upon draft or otherwise, moneys for the conduct of its business. These advances would be taken up by notes of the partnership, with chattel mortgages on cattle then owned by it. The notes were indorsed by the commission firm and sold to banks or other parties, and if at maturity they were not paid by the partnership they were taken up by the indorsers, and when so taken up the amounts thus paid were placed by the indorsers (the commission firm) as a debt on an account run between the firms, and the commission firm sues the estate of a deceased one of the partners for the balance shown by that account to be due. Held, that the suit cannot be maintained. The commission firm paid the notes as indorsers and their right to sue is as indorsers, and their suit should have been brought on the notes, and not upon an account.
    5. -: -: — -: Indorser’s Suit. The indorser of notes, who pays the amounts thereof when they become due, cannot sue the makers upon an account, but he must sue on the notes themselves thus redeemed by him.

      6. -: -: Difference Between Indorser and Surety. There is a vast difference between an indorser and surety in respect of their right to recover the amount paid by either upon the note. When the surety pays the note a cause of action arises in his favor against the maker for the amount so paid, and he can sue upon the maker’s implied promise to repay what he has paid for him. But not so the indorser. There is no contract, express or implied, between him and the maker that the indorser will pay any sum upon the maker’s obligation. The indorser’s only contract is an independent one, by the terms of which the maker is not’ bound, namely, that if the maker does not pay the amount of the note, the indorser will; and if he does so pay, he is entitled to have back the note, which is his evidence of debt against the maker, but no more.
    7. -: -: Note: Payment of Original Debt: Additional Security. The mere giving of a note may not extinguish the original debt, but a note and chattel mortgage given for the amount of the debt evince the intention of a payment of the debt by a note and mortgage, the additional consideration being the security.
    Appeal from St. Louis City Circuit Court. — Hon. Walter B. Douglas, Judge.
    Affirmed.

      R. M. Nichols for appellants.
    (1) The taking of the notes, executed by Fields & Keys, Jr., for the money advanced by C. ,M. Keys & Co. did not extinguish the original cause of action, but o.nly suspended the right of action during the time of the running of the note or notes, and after the maturity of the same, if not paid, an action can be maintained on the original cause of action, upon surrender of the note, if in the possession of C. M. Keys & Co., or accounting for its absence. Steamboat Charlotte v. Hammond, 9 Mo. 59; Appleton v. Kennon, 19 Mo. 637; Bank v. Leavitt, 65 Mo'. 562; Leabo v. G-oode, 67 Mo. 126; Reyburn v. Mitchell, 106 Mo. 365; Bertiaux v. Dillon, 20 Mo. App. 603; Bank v. Peterman, 21 Mo. App. 512; Selby v. McCullough, 26 Mo. App. 66; Flynt ■v. Railroad, 38 Mo. App. 94; Shotwell v. Monroe, 42 Mo. App. 677; Crider v. Wagner, 47 Mo. App. 438; Barton Bros. v. Hunter, 59' Mo. App. 618. (2) The testimony conclusively shows that the notes were brought to the court for the purposes of the trial of the case and were in court the day upon which the order of reference was made; that thereafter they could not be found, for the purpose of making a tendder, or having them cancelled. This is all the law would require, or that claimants could do, in order to maintain their suit upon the original consideration. Steamboat Charlotte v. Lumm, 9 Mo. 64; Lord v. Koenig, 7 Mo. App. 454 ;• McMurray v. Taylor, 30' Mo. 266; Ashdown v. Wood, 31 Mo. 465. (3) The acceptance by C. M. Keys & Co. of a note of an individual member of the firm of Fields & Keys, Jr., dissolved by the death of Keys, in lieu of the matured note of the firm, is not an extinguishment of the firm debt, unless expressly agreed that it should so operate. Deabo v. Good, 67 Mo. 126. (4) The payment of the notes by the claimant had the effect to extinguish them, and the law raised an implied promise in favor of the claimant, against the said estate, for the amount so paid by claimant, which was recoverable in an action at law. Bauer v. Gray, 18 Mo. App. 164; Williams v. Gerber, 75 Mo. App. 30'; Burton v. Rutherford, Admr., 49 Mo.. 258; Blake v. Downey, 51 Mo. 438; Halliburton v. Carter, 55 Mo. 439; Hearne v. Keath, 63 Mo. 89; Burckhartt v. Helfrich, 77 Mo. 382; 2 Woerner’s Am. S. of Admins., *p. 1243; Whisley v. Bragg, 31 Mo. 124; Mansfield v. Edwards, 135 Mass. 15. (5) When C. M. Keys, Jr., died, by virtue of the right of survivorship existing between him and his partner, the title to the partnership property passed to and vested in B. F. Fields, as such surviving partner. 2 Bates on Partnership, sec. 417; Bender v. Markle, 37 Mo. App. 234; Hargadine v. Gibbons, 45 Mo. App. 460, 114 Mo. 561; 22 Am. and Eng. Ency. Law, 211. (6) Letters of- administration were granted on December 1, 1899, and publication thereof was made within thirty days, which started the running of the two-year Statute of Limitation from December 1, 1899. The proof showed that the account was exhibited to the administrator November 30, 1901, and filed in the probate court December 2, 1901 — December 1, 1901, being Sunday — of which the court will take judicial notice. It is conceded that the claim was exhibited within two years. R. S. 1899, secs. 188, 566, 4160 (par. 4), 184 (par. 6); Nicholas Shepherd & Co. v. Donovan, 67 Mo. App. 289. (7) The expunging by the Legislature from the statute of the words-“and presented to the court for allowance in two years” after the decisions in the case of Price v. McCause and Savings Bank v. Bergen, is evidence of an intention to change the law, and it has been held by the Supreme Court that the law was 'changed, and that the change did away with the necessity of actually trying the case and obtaining a judgment of allowance of the claim within two years. Ryans v. Boogher, 169 Mo. 673; Land Co. v. Wright, 114 Mo. 333; McGrath v. Railroad, 128 Mo. 1. (8) It was proper for the circuit court, upon appeal from the probate court, to allow the amendment of the account, constituting the cause of action, by transferring an item from the credit to the debit side of the ledger. Goddard v. Williamson’s Adm., 72 Mo. 134; Hunt v. Bouton’s Admr., 63 Mo. 188; Boeder v. Shryock, 61 Mo. App. 488. (9) “Amendments of the ad damnum are never deemed to constitute a new cause of action. Hence, the frequent ground of objection will not hold at any stage of the ease against amendments increasing or reducing the amount of the demand.” 1 Ency. PL and Pr., p. 586, sec. 10; Elliott v. Abel, 39 Mo. App. 346; McCallaham v. Smith, 76 Mo. 428; Lucas v. Fallon, 40 Mo. App. 551; Hixon v. Selders, 46 Mo. App. 275.

      Wm. F. Woerner and Rudolph Schulenburg for respondent.
    (1) The indebtedness of Fields and Keys, Jr., to C. M. Keys & Co. was evidenced by negotiable notes, which the latter indorsed and sold, afterwards taking np the notes because of their liability as indorsers. The claim, if any, is wholly upon notes or unpaid balances due thereon. The relation of an indorser, for value, of a note, to the note and maker thereof, is different from that of a surety on it. All the authorities cited by appellants on this point relate to surety-ship, and are, therefore, not in point. The liability to which the indorser becomes subject by the indorsement arises wholly from his own act, and not at the instance of the maker, nor for his benefit. If the indorser has to pay, he simply gets back the note and the cause of action against the maker, which he has seen fit to transfer, but does not, like a surety, thereby acquire any implied cause of action for the money paid. Consequently, an indorser must maintain his claim upon the note itself, which he has reacquired, and not for the sum paid by him. Fenn v.. Dugdale, 31 Mo. 582; Peers v. Kirkham, 46 Mo. 146. (2) Appellants cannot recover as if they had sued on the .notes, (a) The’statute expressly requires the claimant against an estate to set out in his notice of claim a copy of the instrument of writing upon which his claim is founded. No demand on any note was either exhibited to the administrator nor presented to the court for allowance. No claim based on notes is set out and no copy of any note upon which it could claim to be based is'furnished or ever was given. It is plain that no judgment can be awarded claimants for any sum whatever upon the demand set out in their notice. R. S. 1899j secs. 188, 197; Fenn v. Dugdale, 31 Mo. 582; In re Sullenberger, 72 Cal. 549. (b) Even if it were permitted to change claimants’ cause of action from one on a long account (triable before a referee), to one on notes (triable before a jury), wbicb we do not concede, yet appellants’ contention of error on tbe part of tbe referee and court in not directing such amendment cannot be entertained. The claimants never at any time requested leave to so amend; they bave always insisted, and still do, that tbe action was properly brought on account, and not on tbe notes, even pretending to bave offered a surrender of tbe notes or its equivalent, so as to revive tbe original indebtedness. How, then, can appellants claim error because' tbe referee and court did not volunteer to do what appellants never asked, and wbicb they still say would bave been error if done? (3) Tbe claimants’ demand, if any, was wholly upon notes or unpaid balances thereon. Claimants cannot sue upon an account after tbe same has been closed by tbe giving and acceptance of negotiable notes for tbe amount due, without first surrendering for cancellation said notes, or accounting for their non-production in such manner as to show an intention to cancel all liability thereon. The evidence upon tbe non-production of tbe notes was for a wholly different purpose ; it fails to show any such surrender or intention. O’Bryan v. Jones, 38 Mr. App. 94; Schepflin v. Dessar, 20 Mo. App. 575; Steamboat v. Hammond, 9 Mo. 64.
   GRAVES,. J.

This cause originated in tbe probate court of tbe city of St. Louis. In that court tbe plaintiffs bad judgment for nearly $11,000. From that judgment an appeal was taken to tbe circuit court, wherein Hon. Jno. W. Dryden was appointed as referee, and made a finding of facts as well as a statement of bis conclusions of law. Tbe referee recommended judgment for tbe defendant, and judgment was so entered by tbe court, after overruling tbe plaintiffs’ exceptions to tbe report of tbe referee. From that judgment the plaintiffs appeal, and thus tbe case is here. The referee in his report carefully stated the issues as well as his findings of fact. So carefully was this done that we shall use the same as the statement of this case. He says:

‘ ‘ The Issues :
“The cause arose in the probate court of the city of St. Louis at its December term, 1901. This appears by the transcript from that court, filed in the St. Louis Circuit Court on February 2, 1902, upon an appeal taken from a judgment of that court rendered ■January 17, 1902, in the matter of the estate of one Cary M. Keys, Jr., deceased, allowing a demand against said estate in favor of C. M. Keys & Company (a firm composed of Cary M. Keys and Hugh Mills), as claimants in the sum of $10,992.22, taken by George R. Henderson, who had been appointed by that court to defend the estate in the matter of said demand. From the transcript, and the original papers transmitted therewith to the circuit court, it appears that the demand sought to be allowed was set out in a written notice thereof, given to Cary M. Keys as administrator of said estate' of Cary M. Keys, Jr., on November 30, 1901, by Hugh Mills for himself and co-partner, and filed in said probate court on Monday, December 2, 1901; also that on December 5, 1901, said probate court on its appearing that said Cary M. Keys, one of the claimants, was the administrator of said estate, appointed the said Henderson to represent and defend it in respect of said demand. It also appears from said papers that said demand was for a balance of $10,992.22 on an open account, in favor of said Cary M. Keys & Company against the firm of Fields & Keys, Jr., and set out in said notice. The account so set out therein was headed thus:
“ ‘Dr. Fields & Keys, Jr.
“ ‘In account with Cary M. Keys & Co.. Cr.’ and consisted of 278 debit items of various debts between November 8, 1897, and November 25, 1901, and of 114 credit items of various dates in tbe same period. Said debit items were for various sums aggregating $507,439.15; and said credit items were for various amounts aggregating $496,446.93; and after deducting the aggregate of said credit items from that of said debit items, tbe account showed a balance of $10,992.22 in favor of claimants.
“Tbe debit items in said account appeared to be, almost entirely, either charged for cash paid on drafts, or for tbe amount of notes, or interest or discounts; and tbe credit items therein appeared to be almost wholly credits for cash, tbe amounts of net sales of cattle, or of notes or bills receivable.
“It did not from anything stated in tbe account appear for, or to whom, tbe debit items of cash noted in it were paid, or whether they were paid at tbe request of tbe deceased or of Fields & Keys, Jr., or not, or by, or to, whom "the notes named in it were made, or when they were so made.
“It appeared in tbe account that all tbe credit items in it up to and including February 28, 1900, aggregated tbe same acount as all tbe debit items to that day; also that all tbe credit items therein up to and including tbe 23d of October, 1901, were equal in amount to tbe total of all tbe debit items to that day, that is, to and including said 23d day of October, 1901.
“After tbe appeal taken in tbe cause to tbe circuit court, under authority of an order made herein on December 26, 1902, tbe account was amended by tbe claimants by their adding to tbe balance in their favor of ten thousand nine hundred and ninety-two and twenty-two hundredths dollars, shown thereby as originally filed, two further debit items under date of November 25, 1901, reading as follows:
“ ‘1901:
Nov. 25, To balance due on note No. 1.574, amended by order of court .....................$ 9,931.47
“ ‘1901:
Nov. 25, To interest paid on note No. 1.574, amended by order of court ..................... 518.80
Which two items being so added to said balance of.... 10,922.22
Made the total balance claimed at the time of the hearing by me .....................$21,442.49’
“Findings ok Facts.
“On and before November 7,. 1897, and up to the time of the presenting of the demand sued for herein for allowance, the claimants, Cary M. Keys and Hugh Mills, were copartners in trade under the name of Cary M. Keys & Company, engaged in the business of selling cattle on commission at the National Stock Yards in Illinois and elsewhere. From said November 7, 1897, and up to November 11’ 1899', the decedent, Cary M. Keys, Jr., who was a son of the claimant, Cary M. Keys, was a resident of the Indian Territory, and was there engaged in the business of buying, feeding and forwarding for sale at the National Stock Yards and elsewhere divers sorts of cattle. He was, during said time, carrying on said business in partnership with one B. T. Fields under the name of Fields & Keys, Jr. On November 11, 1899, while still a resident of said Indian Territory, he died in said territory. No letters of administration upon his estate, .or upon the partnership estate of the firm of Fields & Keys, Jr., were ever granted to any one in said Indian Territory, nor was there any administration of the partnership estate of said firm, either by the surviving partner, or by any one else, in Missouri. On the first day of December, 1899, letters of administration of the estate of said Cary M. Keys, 'Jr., were granted by the probate court of the city of St. Louis to his father, the said claimant, Cary M. Keys; and he at once qualified and began the administration of said estate.
“Due notice of the grant of such letters was published by him within thirty days after their- date, and on December 27, 18991, due proof that such publication had been made was filed by him as administrator in said court.
“Between November 7, 1897, and the death of said Cary M. Keys, Jr., the claimants paid to the use of him and his said firm of Fields & Keys, Jr., the amounts of sundry drafts drawn on them, some by said firm and some by himself. The total of the drafts so drawn on, and paid by them before decedent’s death was $72,121.65 and the amounts thereof are included in the debit items of the account set out in their notice of demand. Said Fields & Keys, Jr., from time to time in the period mentioned, and before decedent’s death, paid to the claimant divers sums on account of their indebtedness to them for the amounts of said drafts so paid, all of which appear as credits in the account. They also, from time to time in said period, made to claimants sundry promissory notes payable to their order in settlement of their said indebtedness for the moneys so paid by them for their use upon said drafts. The amounts of these notes are also included in the credit items of the account. Most of these notes so made by Fields & Keys, Jr., to claimant were secured by chattel mortgages executed by them to claimants, whereby they mortgaged to them divers quantities of cattle which had been bought by them and were in their possession in said Indian Territory. Claimants, after the receipt from them of said notes, sold and indorsed them to the Continental National Bank of St. Lonis, and others. Such of them as were not paid by Fields & Keys, Jr., were taken up by claimants, at their maturity, they paying the amount thereof and interest accrued thereon to said bank, or other holders thereof and receiving them back from the holders. In an account that was kept by them with Fields & Keys, Jr., on their books, they charged the latter with the amounts of the principal and interest of said notes so paid by them to said bank, or other holders, from time to time, and the amounts of their said payments form part of the debit items in the account set out in their notice of demand.
“For part of'the notes so sold and indorsed and afterwards taken up at their maturity by claimants, said Fields & Keys, Jr., executed to them new notes payable, in like manner, to their order for the amounts of the principal, and interest therein, in renewal thereof. These the claimants, in like manner, again sold and indorsed to said bank and others, and upon their not being paid by their makers when due, again took up by paying to the holders of them the amount of •the principal and interest thereof; and they also in like manner, charged said Fields & Keys, Jr., in the account on their books for the amounts they had so paid for the principal and interest thereof. The total amount paid by them in so taking up1 said several ■notes, whether originals or renewals, for the principal and the interest thereof, in the period between November 7, 1897, and decedent’s death on November 11, 1899, was $140,667.84. The several amounts so paid by them for same form part of the debit items of their said account set out in their notice of demand.
“Of the said notes that had been thus made to claimants by Fields and Keys, Jr., prior to decedent’s death, there were remaining still outstanding and unpaid at the time of his death on November 11, 1899, thirteen, of which the principal aggregated $69,779.36.
These were respectively of dates and for amounts as follows, viz.:
Oct. 22, 1898, for $ 1,000.00
May 15, 1899, for 11,433.40
May 16, 1899, for 2,029.16
May 16, 1899, for 2,087.51
July 24, 1899, for 5,500.00
Aug. 7, 1899, for 6,229.29
Sept. 25, 1899, for 4,500.00
Sept. 25, 1899, for 4,500.00
Oct. 9, 1899, for 12,000.00
Oct. 18, 1899, for 14,000:00
Oct. 30, 1899', for 1,000.00
Oct. 30, 1899, for 2,500.00
Nov. 11, 18991, for 3,000.00
Total: $69,779.36
“Of these unpaid notes so then remaining unpaid all except those dated October 22, 1898, for $1,-000.00; May 16, 1899', for $2,087.51; October 30, 1899, for $1,000.00; and October 30, 1899, for $2,500, respectively, were secured by chattel mortgages made by said Fields & Keys on various quantities of cattle, aggregating in all 2,832 head of cattle.
“After the death of said decedent,'the surviving partner of his said firm of Fields & Keys, Jr., viz., B. T. Fields, continued from time to time up to November 25, 1901, to draw drafts upon claimants for various amounts of money on account of the said firm, then dissolved by decedent’s death, and claimants in said period paid for account of him as such surviving partner sundry ones thereof, and charged the amounts paid by them therefor against said dissolved firm in its account with them on their books. The total of the sums so paid and charged by them after decedent’s death, was $10,118, and the various sums so paid aggregating that amount are 'included in the debit items of said account set out in the claimants’ notice of demand.
“After decedent’s death, said Fields also executed to claimants divers promissory notes payable to their order in the name of the former firm of Fields & Keys, Jr. Of these, some were in settlement of his indebtedness for the amount's paid by claimants on the drafts so drawn on them by him after decedent’s death; some were in renewal or settlement of the amounts of said notes aggregating $69,779.36, and interest thereon, which had been taken up by them, some before and some after decedent’s death and were remaining unpaid when he died; and others were in like renewal from time to time up to November 25, 1901, of said notes so given by him and taken up by them. The amounts of all of said notes so made by said Fields after decedent’s death were credited to the former firm of Fields & Keys, Jr., on their books and formed part of the credit items set out in their notice of demand.
“After decedent’s death, claimants, as before, sold and indorsed to said Continental National Bank and other banks or persons, all of the various notes so made by said Fields to them, and, on the coming due of any of them, or any of those which had been made by said firm before his death, and which were then remaining unpaid, took them up, and paid to said bank, or other holders thereof, the balance of principal and interest thereon then unpaid, and received them back from said bank, or other holders. They also, in like manner, charged the amount so paid by them of principal and interest of all of said notes so taken up by them against said firm of Fields & Keys, Jr., in their account with them on their books; and the various amounts so paid are included in the debit items of the account set out in claimants’ said notice of demand. The aggregate of the amounts so paid by them for principal and interest of said notes taken np by them after decedent’s death, and np to the 30th of November, 1901, was $272,756.
“Between the 8th day of November, 1897, and the time of the filing in the probate court of claimants’notice of their demand, they received from said firm of Fields & Keys, Jr., before decedent’s death, and from said Fields as surviving partner after his death, sundry lots of the cattle specified in the chattel mortgages securing divers of the notes hereinabove mentioned, for sale by them for account of said firm of Fields & Keys, Jr., and made sales thereof and re-. ceived in cash the net proceeds of such sales. The amounts so received were credited by them to said firm of Fields & Keys, Jr., in their account with them on their books, and are all included in the credit items of said account set out in their said notice of demand. They aggregate the sum of $71,772.72.
“Besides the amounts hereinabove found to have been paid by claimants to said Continental National Bank, or other holders of the various notes above mentioned, on account of the principal and interest of same, when taken up by them, and to have been included in the debit items of the account set out in their notice of demand, there were paid by them to said bank, or other holders, one of said notes before their presentment of their demand for allowance in the probate court. certain sums which were not included in the debit items of said account. Among said notes was one of date the 15th day of April, 1901, for the sum of $17,010.09 and designated in the account as note No. 1,574. This was one of those which were made by said Fields as surviving partner after decedent’s death as above found, and was so' made by him in renewal to the extent of $16,500', of - two notes amounting to that sum which had been made by the firm of Fields & Keys, Jr., in May, 1899, before decedent’s death. Claimants on October 23,1901, paid to the holder of said note, No. 1,574, the sum of $4,473.60, and on October 30, 1901, the further sum of .$2,605.02 on account of the principal thereof. These two payments they charged against said former firm of Fields & Keys, Jr., in their said account under said dates and the same are a part of the total amount of $272,756 above found to have been paid by them on account of said notes so taken up by them after decedent’s death. They also, on November 25, 1901, paid to the holder of said note the residue of the principal thereof, viz., $9,931.47 and all unpaid interest thereon to that time, namely, $518.80, or in all $10^,450.27, and received said note back from such holder and had the same in their possession at the time of the hearing before me. Said amounts so then, on November 25th, paid by them were not included in the debit items of the account set out in- their notice of demand as filed in the probate court, but are the ones that were entered thereon on December 26, 1902, in the amendment of said account then made by virtue of the order of this court then made therein.
“None of the notes mentioned in the account set out in claimants’ notice of their demand were produced at the hearing before me, nor was there any offer then made by them there to surrender any of them to the decedent’s estate or to said Henderson, the defendant.
“On November 30', 1901, the claimant Mills delivered to his copartner, the- claimant Cary M. Keys, as administrator of decedent’s estate, the notice of a demand claimed by him and said Keys as copartners under the name of .C. M. Keys & Company herein-above referred to. This was signed by said Mills with the names of himself and said Cary M. Keys and was verified by his oath stating that the claimants had given credit to the estate of the decedent for all claims and offsets to which it was entitled, and that the balance claimed was justly due. It was stated in it that the claimants would, at the next term of the probate. court, to be holden at the court house in the city of St. Louis on Monday, the 2d day of December, 1901, or as soon thereafter as they could be heard, present for allowance against the estate of C. M. Keys, Jr., deceased, claims founded on an open account showing a balance of $10,992.22 of which account a copy followed. ■ And there was then set out in it the copy of an account showing such balance of $10,992.22 in favor of claimants, all as already hereinabove specified. Below the affidavit of said Mills to the notice was written a statement signed by said Keys as administrator, in which it was stated that he acknowledged that the foregoing claim and account had been exhibited to him for allowance against the estate of C. M. Keys, Jr., deceased, on the 30th day of November, 1901, and that he thereby entered his appearance in the matter of said claim to the December term, 1901, of said probate court. On the second day of December, 1901, which was Monday and the first day of said December term, the claimants appeared in court, and filed therein said written notice of their claim, so exhibited to said administrator on the preceding Saturday, the 30th of November. Nothing more was done at that time with the notice of claim than to place it on file in the court, and to have it marked by the clerk thereof as filed; nor was any action taken thereon by the court until the following Thursday, the 5th day of December, 1901. On that day upon it appearing to the court that the administrator of decedent’s estate was himself one of the claimants, an order was made by the court appointing George R. Henderson to represent and defend the estate as to said claim, and that he be notified of his appointment. ”

The points made in the exceptions and in the briefs here will be noted in the course of the opinion.

I. Counsel seem to agree, in the briefs, that the suit was instituted in time to obviate the bar of the special statute of limitations.

Under our statute, Revised Statutes 1899, section 4160, the last day for filing the claim having fallen upon Sunday, the claimants had all of the following Monday in which to file it. Upon this point Bland, P. J., in Jordan v. Railroad, 92 Mo. App. l. c. 85, has well said: “In Patrick v. Faulke, 45 Mo. 312, the Supreme Court construed section 4160, supra, to mean that if the last day in which an act might be done fell on Sunday, the act should .be done not later then the preceding Saturday. This ruling, however, was virtually overturned by the subsequent case of Bank v. Williams, 46 Mo. 17, where the statute was construed to mean that if the last day for the performance of an act fell on Sunday, Sunday should be excluded from the computation of the time in which it might be done and that the act might be done on the succeeding Monday. Bank v. Williams has been approved and followed in Cattell v. The Dispatch Publishing Company, 88 Mo. 356; State v. Harris, 121 Mo. l. c. 447; Maloney v. Railroad, 122 Mo. l. c. 115; State v. May, 142 Mo. 135; and in Evans & Hollinger v. Railroad, 76 Mo. App. 468.”

This was a case where the question arose as to whether or not a writ of error had been sued out in time. The year expired February 9, 1902, which was Sunday. The writ was sued out the next day. Motion to dismiss the writ was overruled and we think properly.

From the findings of fact it appears that the notice of claim was served upon the administrator November 30th, but the claim itself was not filed with the court until Monday, December 2, 1901. If we exclude Sunday, as we should, as above indicated, this filing was'in time. No action was taken by the court for several days thereafter, but the notice was to the effect that the claim would be filed on December 2, 1901, and it was so filed.

If the claim was filed in the court, within the time, it can make no difference as to when the court acted thereon. Claimants can not always regulate the actions of courts, and all they have to do is to present their claims within the statutory period of limitations. Nor does “presentation” as used in the statute mean that there should be an actual presentation to the judge and a hearing thereon, but if the claim is actually lodged with the court, through the file mark of its clerk, or otherwise, such is a sufficient presentation to meet the requirements of the law, although the judge of the court may not act thereon for days thereafter. The filing with the clerk is a presentation of the claim to the court. We concur in the language of Ellison, J., in his separate concurring opinion in Savings Bank v. Burgin, 73 Mo. App. 1. c. 116, wherein he says: “I agree that a claim must be both exhibited to the administrator and presented to the probate court for allowance within the two years prescribed as a limitation. But I believe when’a claim has been duly exhibited to the administrator and then, within the period of limitation, is filed-in the probate court, it becomes a part of the records of such court and is presented to the court in the sense of the statute.. Formerly the running of limitation was arrested by merely exhibiting the demand to the administrator. It could then be held out of court by the claimant for a period beyond the limitation, thus often prolonging and embarrassing the administration. To cure this, the Legislature has required that the claim must be both exhibited and presented, so that it may be duly determined according to law and the practice of the court. This is accomplished by exhibiting the claim to the administrator and filing it in court on or before the next-term, that it may be determined in regular course. The words ‘presented to the court for allowance’ do not mean that the cause must be heard by the court within the two years as contended by the appellant. The hearing may, of course, be continued by the court according to its procedure and practice. Those words mean that the claim must be deposited in court, whether in vacation or. term time, to the end that it may be proceeded with at' the nest term according to law and not held back indefinitely by the claimant.” The majority opinion in that case says: “The claimant, according to the statute, is required to present his demand to the court and not to the clerk.” In that the opinion goes too far. When the claim is lodged with and filed by the clerk of the court, it should be considered as presented to the court. In the case at bar the notice was that it would be presented at the nest term of the court on December 2, 1901, and on that day the claim was filed and marked filed. This was sufficient;

II. From the finding of facts, concerning which there is no very serious controversy, it appears that if we take from the debit side of the account filed, those sums which have been .charged in the account, as moneys paid for taking up certain notes with accrued interest, given by Fields & Keys, Jr., to C. M. Keys & Co., then there should be no judgment for plaintiffs.

From the findings of fact, which are thoroughly sustained by the evidence, it appears that C. M. Keys & Co. would advance to Fields & Keys, Jr., upon draft or otherwise, moneys for the conduct of their business. In many' instances these advances would be taken up by notes of Fields & Keys, Jr., with chattel mortgages upon cattle then owned by them. These notes would be sold by C. M. Keys & Co. to the Continental National Bank or other parties, and indorséd by C. M. Keys & Co., and if at maturity they were not paid by tbe makers, Fields & Keys, Jr., they were taken np by the indorsers, C. M. Keys & Co., and when so taken np they were placed, or the amounts thus paid were placed, in an account which was run between the firms. If these matters were proper matters of account then the plaintiffs have some standing; but if, as the referee found, these notes when taken up by the indorsers were the sole evidence of the debt between the two firms, then this suit must fail. These notes were given for actual cash borrowed. They were sold to the Continental National Bank and other parties. Upon maturity, if not paid by the makers, they were taken up by the indorsers, so that we have the clean-cut question, as to whether or not an indorser upon a note can pay the amount thereof and then sue the makers upon an account, or whether his right of action is upon the note thus redeemed by him or them. The solution of this question solves this case.

The relation of C. M. Keys & Co. to these notes is that of an indorser, and if, as the referee rightly found, there is sufficient number of these items on the debit side of the account filed to overbalance the judgment claimed, whether under the original or amended statement, then the judgment should be for defendant, unless the plaintiffs can sue upon the account, rather than upon these redeemed notes.

To our mind the referee reached the right conclusion of law when he held that the action, if any, was upon the notes, rather than upon the account. Remembering that the claimants took notes for their debt, and then sold them by indorsement, and after-wards paid their vendee the amount of the note, and took up the same, it is clear that, as against the makers, their action is upon the note and not upon the account. In Fenn v. Dugdale, Admx., 31 Mo. l. c. 582, we said: “The liability of the defendant to the plaintiff is upon the note, and is not caused by a payment for the use or at the request of the defendant. Fenn’s payment to Lucas & Co. was in satisfaction of his own liability as indorser, and not for or on account of the maker of the note; consequently, his demand against Dugdale is not for the sum paid by him, but for the amount of the note which he has reacquired of Lucas & Go. by satisfying them upon his contract created by his indorsement of the note. Fenn’s demand against the estate of Dugdale should have been set out in his notice to the administratrix, as founded upon the note, and, as that was not done, objection was properly taken to admission in evidence of the note.”

And in the later case of Peers v. Kirkham, 46 Mo. l. c. 147, we said: “It is impossible to distinguish this case from that of Fenn v. Dugdale, 31 Mo. 580. It was there held that the indorser of a promissory note could not recover against the maker the costs of the judgment recovered against him as indorser; that the judgment against the indorser was not evidence against the maker of the note; and that, where the indorser had satisfied a judgment upon the note against himself, his claim upon the. maker was upon the note itself, and not for money paid. The case of Fenn v. Dugdale being regarded as decisive authority here, the judgment must be affirmed.”

C. M. Keys & Co., having adjusted the whole or any part of their indebtedness owing from Fields & Keys, Jr., by notes, and having sold these notes, upon the payment to their grantees of the face value and interest, did so as indorsers, and when so paid their action against the makers was one upon the notes and not one upon account. There is a vast difference between an indorser and a surety in this respect. With the surety, when payment is made by him, a cause of action arises for the amount so paid and he can sue upon the implied promise to repay what he has been out. Different, however, with an indorser of a note. There is no contract either express or implied with him and the maker that he will pay any snm upon the obligation to another. The only contract is that the maker will pay to the payee the amount of the note as per its terms. In other words, the contract of indorsement is an independent contract, by the terms of which the maker of a note is not bound. If'the payee of a note chose to indorse the note, and thus enter into this independent contract, which in law is to the effect that he will pay the amount of the note if the maker does not, and he does so pay such amount, he is entitled to have back from his grantee the note, which is his evidence of debt against the maker, but no more. In other words, he is left just where he was before he made the contract on his own responsibility, — the contract of indorsement. The two cases above cited have not been overruled nor criticised, nor should they be overruled. When the indorser pays the amount of a note to his indorsee, he does so upon the independent contract of indorsement, and thus reacquires the note which he had sold.

It is not necessary to discuss those cases wherein it is held that the giving of a note does not extinguish the original debt. Upon these cases the appellants rely. Grant that to be true, in cases wherein no security is given for the debt, but in cases wherein the original debt is merged into a note and chattel mortgage, as in the case at bar, there is certainly evinced the intention of a payment of the original debt by the note and mortgage. If I owe B a book account for $600 and later, being pressed by B, give him my note and chattel mortgage for said sum, the presumption follows that the old obligation is paid and the new one assumed. The additional security is ample consideration for the new contract, the note. We can see a difference between a case where additional security is given, and one where a simple note is given to .take up an account. In the latter there would be no con sideration for the change of the nature of the obligation, whilst in the former there would be ample consideration. ' Nor does it appear that there was a surrender of the notes in question, or a tender of them.

In the case at bar the notice of claim and the claim was not upon notes, but upon an account. Under the law if the claim is upon a note, a copy thereof must be stated and such was not stated in this case. So that we have a plain claim upon an account, whilst under the law it should have been upon notes.

In our judgment the legal conclusions of the referee were right, and there was no error upon the part of the circuit court in entering judgment upon the report.

III. Prom the record it appears that the plaintiffs continued business with Fields long after the death, and thereby the dissolution of the copartnership. Several nice questions are involved herein, but in view of our conclusions upon the question in the previous proposition further space need not be taken.

Prom all it follows that the case should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    JOSEPH T. DONOVAN, Appellant, v. ADAM BOECK.
    Division One,
    February 25, 1909.
    1. SUIT ON CONTRACT: Demurrer. Absent a confidential relation, present parties who are sui juris and capable of contracting, present a contract made at arm’s length, supported by a valid consideration and not obnoxious to good morals or the policy of the law; absent, surprise, mistake, deceit, oppression or any of the protean forms that fraud takes on; and present a written contract somewhat inaccurately drawn, but unambiguous in terms and complete within itself, and which is relied upon, by the pleader to the exclusion of any parol agreement, then the question of whether it was error to sustain a demurrer to the petition pleading the contract in Tiaec verba and making a violation of said contract the basis of the suit, turns upon a judicial construction to be put upon the written contract.
    2. -: Admissions by Demurrer. A demurrer to the petition only admits facts well pleaded. It does not admit the soundness of conclusions of law in the plea, nor mere conclusions of the pleader on the facts constitutive of the cause of action, nor does it admit the correctness of averments concerning the meaning of the paper pleaded in the bill. So, although the petition averred that the warranty deed from plaintiff to defendant was an equitable mortgage and not a conditional sale, it yet remains for the court, upon a demurrer, to give the written contract set out in the bill its true meaning.
    3. -: -: As to Facts. Nor does a demurrer admit the facts in the sense that such admission can be used as an admission of record at other stages of the case, e. g., a trial on the merits.
    4. -: -: -: Value of Property: Damages. The petition avers that a warranty deed was an equitable mortgage and not a conditional sale, that the debt amounted to $7,780 and interest and the property was worth $27,000, and that under a written contract set out literatim defendant was to sell the property and after paying the debt was to keep enough of the price received to pay the debt and costs and account to plaintiff for the balance. Held, that it is not determinate of the issue of law raised by the demurrer of whether the deed was an equitable mortgage or a conditional sale, to concede that the demurrer admits the value of the property and inferentially the amount of damages alleged in the bill, for the point goes only to inadequacy of consideration, and is not decisive of the issue.
    5. -: Inaccurate But Unambiguous. A contract may be somewhat inaccurate and still not be ambiguous.. The language may be inaccurate but if the court can determine the meaning of the inaccurate language employed the contract is not ambiguous.
    6. -: Rule for Interpretation: Intention. There is one main rule common to the interpretation of all contracts, and to it all others must give way. That rule is to get at the meaning of the contract and enforce its true intendment as judicially gathered from all its four corners. It is therefore elementary that the subject-matter of the contract, the relations of the parties to that subject-matter, and the ordinary meaning of the language used in the contract, pass in review.

      7. -;-: Mortgage or Conditional Sale: Existing Debt. A mortgage cannot spring up without an existing debt, enforceable at law, to which the mortgage becomes a security. Without an existent debt there is no mortgage.
    8. -: -: Debt Cancelled by Contract: Admissions by Demurrer. Defendant held plaintiff’s live note secured by a live mortgage, and thereupon plaintiff made a warranty deed to defendant, and they entered into a written contract in which it was recited that the consideration supporting it was the cancellation of the mortgage debt and an amicable settlement and the avoidance of a foreclosure, sale. Held, that the subsisting debt was cancelled by the contract’s express terms, and the transaction was a conditional sale and not an equitable o mortgage, and a demurrer to the petition did not admit an allegation that the debt was not cancelled but the note continued to be held by defendant as a live note and the mortgage as a live lien, for that allegation is but the construction of the pleader put upon the .written contract set out in haec verba.

    9. -: -: -: Mortgage Note Held by Mortgagee. The possession of the mortgage debt and securities by the mortgagee is an incident but not a controlling one in determining the issue of law raised by the demurrer of mortgage or no mortgage. It is not controlling where there is a written contract declaring the debt cancelled.
    10. -: -: Valid Mortgage: Surrendered for Equitable One. In attempting to determine whether a certain written contract was a conditional sale or an equitable mortgage, it is well to hold in mind that mortgagees, where they hold a valid subsisting mortgage and a valid note for a stated sum, are not prone to exchange them for an equitable mortgage and an implied promise to pay a debt.
    11. -: -: Stipulation of No Mortgage. In spite of the fact that the written contract says that “it is expressly understood between the parties hereto that this instrument shall not be construed as a mortgage,” a court of equity would construe it to be a mortgage if that were its plain legal intendment; but where there is no such intendment to be drawn from its scope, purpose and meaning, there seems to be no reason why the parties, out of abundant caution, may not insert such a recital in their contract, to remove all doubt that they understood its meaning.
    12. -: -: Laches. Where the bill does not count on a conditional sale, but on an equitable mortgage, and makes no tender of performance and pleads no excuse for non-performance, the -defense of laches is not pertinent, and citation of authorities to support the rule that one who seeks to enforce an option to purchase real estate must by his bill show himself prompt, eager and desirous of performance, is afield.

      Appeal from St. Louis City Circuit Court. — lion. W arwick Hough, J udge.
    Affirmed.

      R. M. Nichols for appellant.
    (1) When a grantor in an absolute deed at the same time takes from the grantee a written contract giving the former a certain length of time in which to redeem the premises by paying the amount of the debt or consideration of the deed, and binding the latter to reconvey on such redemption, the two papers together constitute a mortgage. Book v. Beasly, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335; Chance v. Jennings, 159 Mo. 554; Reily v. Cullen, 159 Mo. 330; Shields v. Russell, 142 N. Y: 290; Turner v. Wilkinson, 72 Ala. 361; Rodgers v. Jones, 92 Cal. 80; Booth v. Hoskins, 75 Cal. 271; Kelly v. Leachman, 2 Idaho 1112;. Hawes v. Williams, 92 Me. 483; Snow v. Pressey, 82 Me. 552; Security Sav., Etc., Co. v. Lowenberg, 38 Ore. 159. (a) One of the indications that the transaction was intended as a mortgage is the provision in the contract that “said Joseph T. Donovan pays said amount within eighteen months from August 5, 1901, viz., or before February 5, 1903, otherwise this agreement is void.” Scott v. Hughes, 124 G-a. 1000; Pearson v. Seay, 38 Ala; 643; Ferguson v. Miller, 4 Cal. 97; Bacon v. Brown, 19 Conn. 29; Bank v. Tenn. Coal, Etc., Co., 62 Oh. St. 564; Thacher v. Morris, 52 W. Va. 220; Knowlton v. Walker, 13 Wis. 264. (b) Where an. abs51ute deed is given as security for a debt, no personal covenant or promise on the part of the grantor to pay the debt is necessary to make it a mortgage. Locke v. Moulton, 96 Cal. 21; Dougherty v. McColgan, 6 Gill & J. 275; Rempt v.Geyer, 32 Atl. 266; Horn v. Keteltas, 46 N. Y. 605; Tuggle v. Berkeley, 101 Ya. 83; Schreiber v. Leclair, 66 Wis. 579; Russell v. Southard, 12 How. 139. (c) A definite test to determine whether or not an absolute deed, executed in consideration of a precedent debt, with an attendant agreement to reconvey the premises to the grantor on payment of the consideration, constitutes a mortgage or a conditional sale, is found in the question whether the debt was discharged by the deed, or subsisted afterwards. The language of the contract is unmistakable in that it leaves the debt still due and owing, the grantor being bound to pay it at some future time before he would be entitled to recover back his property. Hall v. Arnott, 80 Cal. 348; Keithley v. Wood, 151 111. 566; Helm v. Boyd, $42 111. 370; Hughes v. Sheaff, 19 Iowa 335; Riley v. Starr, 48 Neb.. 243; Budd v. Van Orden, 33 N. J. E. 143; Todd v. Campbell, 32 Pa. St. 250; Ruffler v. Womack, 30 Tex. 332. (d) The fact that the grantee retained possession of the notes and deed of trust, without cancellation, and a surrender of the same, from the date of the agreement, August 5, 1901, until he sold the property, September 18, 1903, raises the presumption that the debt was not extinguished by the conveyance and that a mortgage was intended. Ennor v. Thompson, 46 111. 214; Wright v. Mahaffey, 76 Iowa 96; McMillin v. Bissell, 63 Mich. 66. (e) The fact that the property, as admitted by the demurrer, was worth $27,000 when the conveyance was made for $7,780, is a strong circumstance showing that the parties intended the conveyance as a mortgage. Todd v. Day, 106 Mo. 278; Glass v. Heironymus, 125 Ala. 140; Husheon v. Husheon, .71 Cal. 407; Chapman v. Ayer, 95 Ga. 581; Helm v. Boyd, 124 111. 370; Conlee v. Keying, 94 Iowa 734; Burch v. Nicholas, 26 Ky. Law Rep. 264; Kemp v. Earp> 42 N. C. 167; Bank v. Warner, 92 Tex. 226; Rich v. Doane, 35 Vt. 125; Thacher v. Morris, 52 W. Va. 220; Russell v. Southard, 12 How. 139; Simpson v. Bank, 93 Fed. 309. (f) The transaction in itself and the averments of the petition show that Donovan was in embarrassed. circumstances and unable to pay the debt, and that it was the intention to create a mortgage. Reed v. Reed, 75 Me. 275; Montgomery v. Beeches, 31 Atl. 451; Steele v. Black, 59 N. C. 427; Gilchrist v. Beswick, 33 W. Va. 168; Butler v. Butler, 46 Wis. 430. (g) The possession by the grantee under a contract for an accounting of rents and profits is evidence of an intention to create a mortgage. Murdock v. Clark, 24 Pac. 272; Clark v. Landon, 90 Mich. 83. (h) The circumstance that the defeasance contract provides that “this instrument shall not be construed to be a mortgage” is not any more conclusive than if it had provided that it was a “conditional sale,” because after all the entire transaction must be construed together. Wilcox v. Tennant, 13 Tex. Civ. App. 220'. (2) Where there is doubt as to the meaning of the parties to a contract, as to whether a conditional sale or right to redeem is intended, the transaction must be construed in favor of a mortgage. Turner v. Shaw, 44 Mo. 229; Morley v. Dryden, 57 Mo. 226; O’Neil v. Chappell, 62 Mo. 207. (3) No agreement of the parties at any time can take away or limit the right of redemption. Once a mortgage always a mortgage. Turner v. Shaw, 44 Mo. 429; Cobb v. Day, 106 Mo. 295.

      Wm. F. Smith for respondent.
    (1) A demurrer admits only facts which are well pleaded. In Missouri, it does not admit the amount of damages to be assessed where an inquiry of damages follows upon an interlocutory judgment. Nor does a demurrer admit averments concerning the meaning of a paper, nor conclusions of law. Bliss on Code PL, secs. 418, 420, 636; 15 Mo:. 187; 1 Phil, on Ev., 786; McKenzie v. Mathews, 59 Mo. 99; 21 Wall. 430; 68 N. Y. 298. (2) The contract of August 5, 1901, is not ambiguous in law. “No matter how difficult it is to interpret an instrument, if the court does finally interpret it, there is no ambiguity about it which will warrant the introduction of parol testimony.” 1 Ency. of Ev., pp. 826-841; Riggs v. Meyers, 20 Mo. 239. (3) “Mere inadequacy of price, or any other inequality in the bargain is not, however, to be understood as constituting, per se, a ground to avoid a bargain in equity. However, there may be such an unconseionableness or inadequacy in a bargain, as to demonstrate some gross imposition or undue influence-, and in such case courts of equity ought to interfere upon satisfactory ground of fraud. But then such unconscionableness or inadequacy of price should be made out as would (to use an expressive phrase) shock the conscience, and amount in itself to conclusive and decisive evidence of fraud.” 1 Story’s Eq. Jur., secs. 244-246; Pollard v. Lyman, 2 Am. Dec. 63 and note 71; Robertson v. Smith, 11 Tex. 211; Rue v. Dole, 107 111. 283; Holmes v. Fresh, 9 Mo. 200; Cobb v. Day, 106 Mo. 301; Keith v. Browning, 139 Mo. 190; Hard-wick v. Hamilton, 121 Mo. 465; Railroad v. Brown, 157 Mo. 326; Maloney v. Webb, 112 Mo. 575; Phillips v. Stewart, 59 Mo. 491; Harlan v. Nation, 126 Mo. 97. (4) “.In passing on transactions of this class, the understandings and purposes of the parties thereto are to be considered and respected as in other cases. If they intended an extinguishment of the debt, and the vesting of an absolute title subject only to an agreement to reconvey upon specific terms — as a payment of an amount equal to the cancelled debt and interest — the objects of the arrangement are not to be defeated by turning the transaction into a mortgage when the parties intended no such result. When the parties intended a conditional sale, and not a mortgage, and make their contract in accordance with their intentions, it is not the province of the court to circumvent or frustrate their intentions.” 44 Mo. 429; 7 Cranch 237. (5) It was not essential to the cancellation and extinguishment of the subsisting mortgage debt and tbe lien that tbe note'itself evidencing tbe debt be cancelled and released of record, or delivered up immediately. The conveyance paid and extinguished the debt and discharged the lien, and the writing expressly records that fact, and that is all that is required. The conduct of the parties comports with that understanding also. Slowey v. McMurray, 27 Mo. 113; Turner v. Kerr, 44 Mo. 432; Wolff v, Bobb, 148 Mo. 335; Saxton v. Hitchcock, 27 Barb. (N: V.) 220; Bailey v. Trust Co., 188 Mo. 483. (6) Since appellant Boeck owned the note and mortgage at the time the warranty deed to the mortgaged premises was delivered to him, the transaction resulted in a merger, in law, and the indebtedness became cancelled in law, even though the mortgage was not at the time released of record. Wonderly v. Giessler, 118 Mo. App. 708. (7) The facts and circumstances show that appellant was and is guilty of such laches as that a court of equity should not and will not favorably entertain his plea Under the Circumstances shown. And since the laches arise out of the facts of the case, the defense of laches can be invoked even though that defense was not pleaded, and can be raised by demurrer. Hatcher v. Hatcher, 139 Mo. 613; Stevenson v. Smith, 189 Mo. 447; Dexter v. McDonald, 196 Mo. 403. (8) The warranty deed from Donovan to Boeck, which is absolute in form and terms, must be construed according to its terms and purport, both at law and in equity, until it is shown by convincing proof to have been intended as a mortgage; and the burden of overthrowing its legal effect rests, as in all cases, on him who seeks to defeat its terms; and neither the terms and conditions of the contemporaneous offer or option contract, nor the incidental facts, circumstances and inferences, show that the absolute deed was intended as a mortgage. Wolff v. Bobb, 148 Mo. 344; Bailey v. Trust Co., 188 Mo. 483.
   LAMM, P. J.

Cast on demurrer to Ms amended bill and refusing to plead over, judgment went against Mm and plaintiff appeals.

On November-19, 1904, plaintiff brougM Ms suit in equity, tbe object and general nature of wbicb was to recover damages for tbe sale of certain real estate in alleged violation of an alleged agreement and for an accounting of rents and profits, etc. It is not necessary to reproduce tbe bill — a synopsis will serve, vis.:

It is charged that on December 6, 1897, plaintiff, a resident of St. Louis, owned a certain lot in East St. Louis, Illinois, an opera house and the appurtenant fixtures. That on July 13, 1898, the J. T. Donovan Real Estate Co. loaned plaintiff $10,000, and to secure the same took a mortgage “in the ordinary and customary form” on said lot, opera house, furniture and fixtures, which mortgage was duly put of record. That afterwards the mortgage became the property of one Natille Patte. That afterwards it passed by assignment to defendant, a resident of St. Louis, and became his property. That the mortgage debt maturing, afterwards on August 5, 1901, plaintiff and defendant had an accounting on the mortgage and agreed there was due defendant $7,780, principal and interest, on said date, and thereupon they entered into written agreement anent the subject-matter. The bill sets forth, by way of allegation, the supposed terms of this agreement and puts the pleader’s construction on the meaning of those terms. But as the agreement is also pleaded, totidem verbis, it will speak for itself, vis.:

“Whereas Joseph T. Donovan, of the city of St. Louis, State of Missouri, is indebted to Adam Boeck, of the same place, in the sum of seven thousand seven hundred and eighty dollars under and by virtue of a certain note, secured by mortgage, dated July 13, 1898,, and recorded in the recorder’s office of St. Clair county, Illinois, in book 263, page 588; said Adam Boeck having become the owner of the said note and mortgage, and whereas default has been made by the said Jos. T. Donovan in the payment of the principal note and mortgage and taxes upon, the property described in the mortgage, said Jos. T. Donovan has this day conveyed by warranty deed to said Adam Boeck (in consideration of the cancellation of the said' debt of said Jos. T. Donovan to said Adam Boeck in the said sum of seven thousand seven hundred and eighty dollars; and in consideration of an amicable settlement and to avoid a foreclosure suit) the property known as the ‘McCasland Opera House’ in the city of East St. Louis, Illinois, described as follows:
“Lots numbered one and two in block one of Pecan Grove Addition to East St. Louis, as per plat recorded in the recorder’s office of St. Clair county, in book ‘D’ on page 108, having a front of sixty feet on Broadway by a depth of one hundred and twenty feet to an alley, together with all the furniture, fixtures, scenery and appurtenances to said opera house belonging.
“And said Adam Boeck shall immediately have the possession of said property and is entitled to all the rents, issues and profits thereof.
“Now, therefore, these presents witnesseth: That the said Adam-Boeck, or his legal representatives, upon payment to him or his legal representatives, of the sum of seven thousand seven hundred and eighty dollars, with interest on that sum at the rate of seven per cent per annum from the 5th day of August, 1901, including expense of repairs, taxes and insurance in said property, will reconvey to said Jos. T. Donovan by quitclaim deed, free of any incumbrance thereon (incurred by said Adam Boeck), provided: Said Jos. T. Donovan pays said amount within eighteen months from August 5, 1901, viz.: on or before February 5, 1903; otherwise this agreement is void.
“The purpose of this contract and the conveyance of this date to Adam Boeck, is to avoid the expense of foreclosure proceedings to said Jos. T. Donovan, and it is expressly understood between the parties hereto that this instrument shall not be construed to be a mortgage.
“And it is further agreed that upon the payment by said Jos. T. Donovan to the said Adam Boeck of the said indebtedness as aforesaid, at the time and in the manner aforesaid, the said Jos. T. Donovan shall be entitled to an accounting of said Adam Boeck and the payment to him said Jos. T. Donovan of any balance which may be due him from such rents collected.
“This agreement shall be binding upon the heirs, executors, administrators and assigns of the parties hereto.
“In witness whereof the said parties have here-, unto set their hands and seals, in duplicate, this 5th day of August, 1901.”

It is next alleged that “pursuant to and as an incident to the said agreement” on the same date plaintiff conveyed the property to defendant by a warranty deed, absolute on its face, but which was intended to be and is a mortgage and was for the purpose of holding the legal title until plaintiff could pay the debt; that the consideration in the deed was $7,780, but in fact plaintiff received no consideration for the conveyance — the mentioned consideration being for the balance due on the mortgage debt to the date of conveyance; that defendant at no time released the mortgage or the secured notes and delivered them to plaintiff, but held the same as a lien upon the mortgaged property until said property was sold and conveyed by him to one Arnold as hereinafter stated; that on the date of said conveyance to defendant the property was of the reasonable market value of $27,-000; that on the date of the agreement and conveyance defendant entered into possession of the premises, proceeded to the execution of the agreement, collected large amounts of rents, issues and profits, accruing from the premises, until September 18, 1903, on which latter date he sold the property to one Arnold by a general warranty deed, expressing a consideration of only $1,000. That in truth and fact, while the amount is unknown to plaintiff, yet, on information and belief, he charges and avers that the amount received from Arnold was largely in excess of $7,780. That defendant at all times concealed from plaintiff the amount received in the sale, and. failed and refused to account to plaintiff for any sum in excess of $7,780 together with interest, expenses, repairs, taxes and insurance upon said property. That the rents and issues of said property were equal to or more than sufficient to pay all accruing interest on said indebtedness, including expenses of repairs, taxes and insurance prior to the date of the Arnold sale. That at the time of the Arnold sale the property was of the reasonable market value of $27,000. That the conveyance by defendant to Arnold was in violation of the agreement between plaintiff and defendant as .aforesaid and that by reason of such violation plaintiff has been damaged in the sum of $27,000.

The prayer follows:

“Wherefore and by reason of the premises plaintiff prays that defendant be ordered to account to plaintiff for the reasonable value of said property, together with all of the rents collected and income received by him from said property, less any reasonable and proper expense, taxes, repairs or insurance, paid out by him in maintaining said property, and plaintiff prays judgment against the defendant for all sums of money which may be found due and owing plaintiff together with interest thereon, and plaintiff prays this court for such other judgments, orders and decrees as may seem to the court just and proper, together with his costs in this behalf expended, and for this he will ever pray.”

The grounds of demurrer are: First. That the petition does not state facts sufficient to constitute -a cause of action. Second. That the contract pleaded in the petition, when read with the warranty deed referred to, is not ambiguous, is an option contract (a conditional sale) and not a mortgage; that the deed and contract control the rights and the intention of the parties without resort to parol evidence or extraneous circumstances, and, properly construed, the petition and contract show that plaintiff has no rights in equity against defendant. Third. Because on the face of the petition plaintiff has been guilty of such laches that a court of equity will not entertain Ins plea. Fourth. Because on the face of the petition it appears that plaintiff is not entitled to the relief sought.

Errors are assigned as follows:

“1. The court erred in holding that the contract, together with the deed, created a conditional sale.
“2. The court erred in holding that the contract did not show upon its face that the deed, absolute in form, was by the parties intended as a mortgage.
“3. The court erred in holding that under all the averments of the petition, the deed dated August 5, 1901, absolute upon its face, was not by the contract and the averments in the petition, admitted by the demurrer, intended by the parties as a mortgage.”

Is there soundness in any of these assignments?

I. The uppermost question here is whether the pleader in his bill or the court in its ruling put a correct construction on the written contract. We say this is so, because it is sound law that, absent a confidential relation, present parties who are sui juris and capable of contracting, present a contract made at arm’s length, supported by a valid consideration and not obnoxious to good morals or the policy of our laws; absent surprise, mistake, deceit, oppression or any of the protean forms that fraud takes on; and present a written contract somewhat inaccurately drawn, but unambiguous in terms and complete in itself, and which is relied upon by the pleader to the exclusion of any parol agreement (all of which elements are here), then in such condition of things, in last analysis, whether it was error to sustain the demurrer turns upon the judicial construction to be put upon the written contract. The cause is put to us on the theory that by sustaining the demurrer the court construed the contract, when read in connection with the warranty deed of even date, to be a conditional sale and not an equitable mortgage.

II. It is argued that the demurrer admits the truth of the allegations of the pleading. This is so only in a sense. Parties on demurrer go to trial-upon an issue of law, and in order to do so it must be held that the facts remain in abeyance in the background and are taken as true for the purposes of the demurrer. But a demurrer admits only facts well pleaded. It does not admit the soundness of conclusions of law in the plea, nor mere conclusions of the pleader on the facts constitutive of the cause of action, nor does it admit the correctness of averments concerning the meaning of a paper pleaded in the bill.

In Dillon v. Barnard (21 Wall. l. c. 437), Mr. Justice Fiedd, speaking for the Supreme Court of the United States, said: “The averments of the bill as to the purport and meaning of the provisions of the indenture, the object of their insertion in the instru-. ment, and the obligations they imposed upon the corporation and the trustees, and the rights they conferred upon the plaintiff when his contract was approved, are not admitted by the demurrer. These are matters of legal inference, conclusions of law upon the construction .of the indenture, and are open to contention, a copy of the instrument itself being annexed to the bill, and, therefore, before the court for inspection. A demurrer only admits facts well pleaded; it does not admit matters of inference and argument however clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is annexed, against a construction required by its terms; nor the correctness of the ascription of a purpose to the parties when not justified by the language used. The -several averments of the plaintiff in the bill as to his understanding of his rights, and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposition of the demurrer. This is not the case of a bill to set aside or reform the contract as not expressing the actual intention of the parties. It is a case where the contention arises solely upon the meaning of the indenture in its bearing upon the contract, and that must be ascertained by applying to its language the ordinary rules of interpretation.” To the same effect is Bonnell v. Griswold, 68 N. Y. 294. See Bliss on Code Pleading (3 Ed.), see. 418.

Therefore, although the pleader in this case averred in his bill that the written contract between Donovan and Boeck meant this, that, or the other thing —for instance, that the warranty deed was an equitable mortgage and not a conditional sale — yet it remains for the court and not for the pleader in his hill to' give the terms of the contract their true meaning. -

III. Nor does a demurrer admit the facts in the sense that such admission can he used as an admission of record at other stages of the case — e. g., on a trial on the merits. It is argued that the demurrer admits the alleged value of the property. Prom this fact it is argued inferentially that it admits the amount of plaintiff’s damages; and, as wide divergence between the amount to be paid for the property and its true value is secondarily of some force in determining whether the contract is a conditional sale or a mortgage, the point is of some significance. On it, we observe that while it is not necessary in this case to hold that the demurrer does not, for its own purpose, admit the amount of damages alleged in the bill arising from the alleged violation of the written agreement by the sale to Arnold, yet we express a doubt on the proposition under the provisions of sections 774-5-6, Revised Statutes 1899. Those sections seem to contemplate that if judgment be rendered on demurrer, on an issue at law, where the damages cannot be ascertained by the written instrument sued on, but remains unliquidated (as here), inquiry should be had on the amount of the damages. The reasoning of this court in Darrah v. Steamboat Lightfoot, 15 Mo. 187, would seem to point that way. See also McKinzie v. Mathews, 59 Mo. 99.

But, conceding to the appellant (without deciding) that the demurrer admits the value of the property and inferentially admits the amount of the damages as alleged in the bill, yet that concession is not determinative of the issue at law raised by the demurrer. It is an element to be considered for what it is worth, but is not a decisive one. The point goes to the inadequacy of .the consideration. Gross inadequacy of consideration may afford grounds of equitable relief; therefore, inadequacy of consideration becomes an element to be considered in determining whether a contract evidences a conditional sale or a mere security. In applying that particular doctrine to the case at bar, it is proper to observe that the bill does not allege the amount of back or accrued taxes; it does not allege the condition of repair the property was in or the amount of outlays necessary to put and keep it in repair and preserve it. These elements become part of the consideration and are to be considered on the question of its inadequacy. So that, as said, the inadequacy of consideration, if taken as admitted on demurrer, must be judged of in connection with the vagueness of the bill in the particulars enumerated.

Again, if the bill counted on fraud, or on the existence of such confidential relation as would elicit the lively concern of a court of conscience, or if it sought to reform the instrument by supplying a term or terms of the contract omitted by mutual mistake or. inadvertence, then the matter might stand on another foot; or if the written contract was plainly ambiguous in its terms a different case might be here. In such latter case, in interpreting ambiguities the court would be-. nignly lean towards the construction of a mortgage, if a fair resolving of such ambiguities could be made in favor of that view (See authorities, infra). Now, the language of the contract is somewhat inaccurate but, as presently seen, it is not ambiguous. As pointed by Scott, J., in Riggs v. Myers (20 Mo. 239)There is a distinction between an inaccuracy and an ambiguity of language. Language may be inaccurate without being ambiguous, and it may be ambiguous though perfectly accurate. ..... The language may be inaccurate, but if the court can determine the meaning of this inaccurate language, without any other guide than a knowledge of the simple facts upon which, from the nature of language in general, its meaning depends, the language, though inaccurate, could not be ambignous.” The foregoing just observations of Judge Scott are applicable to the contract in suit.

Confining our attention to the contract itself, we come to the main question, viz:' Did the chancellor rightly construe it to be a conditional sale?

IY. In determining the question of whether a given contract is one of conditional sale or one of mortgage, courts in given cases have adopted and applied sundry rules having more or less play in deciding the point. These rules abound in nice distinctions and those distinctions are discussed in briefs of learned counsel in the case at bar with elaborate diligence. But one main rule is common to the construction of all contracts and to it all others must give way. That rule is to get at the meaning of the contract and enforce its true intendment as judicially gathered from all its four comers. To this end it is elementary that the subject-matter of the contract, the relations of the parties to that subject-matter and the ordinary meaning of the language used in the contract, pass in review.

Another main rule is that a mortgage cannot spring up without an existing debt, enforceable at law, to which the mortgage becomes a security. Under this rule the debt must first be sought out as substance, the tree trunk, the mortgage becomes an incident to that substance, the shadow to that trunk. There must, then, be found the relation of debtor and creditor before there can be found a mortgage in contemplation of law. So that, to.the maxim, once a mortgage always a mortgage, there must be added another, viz., no debt, no mortgage. [Conway’s Executors v. Alexander, 7 Cranch 218; Desloge v. Ranger, 7 Mo. 327; Slowey v. McMurray, 27 Mo. 113; Turner v. Kerr, 44 Mo. 429; Bobb v. Wolff, 148 Mo. 335; Dunaway v. Day, 163 Mo. 415; Bailey v. St. Louis Union Trust Co., 188 Mo. 486; Powell v. Crow, 204 Mo. 481.]

Testing this contract by the two main rules laid down, it would seem to be made clear beyond reasonable doubt that it evidenced a conditional sale and not a mortgage. This is so, because:

(a) Phtting ourselvqs in the shoes of Donovan and Boeck and looking at the matter through their eyes, it appears that at one time Boeck had Donovan’s live note for borrowed money. He could have sued on that note and enforced its collection by judgment and fi. fa. independently of the mortgage. But the contract changed all that. This subsisting debt was canceled by its express terms, and if Boeck had sued on that note after the execution of that contract, the contract might have been pleaded in bar of the suit, unless we wholly read out of the contract its provision to the effect that the consideration supporting it is •the cancellation of the mortgage debt of $7,780, and the provision that a further consideration is an amicable settlement and the avoidance of a foreclosure suit. With these provisions in the contract, what debt was due and owing from Donovan to Boeck which the latter could have enforced at law? To construe the original debt as still existing would certainly be a harsh construction of the contract against the debtor, and one no court should make unless constrained thereto by the spelling of the whole instrument. True the bill alleges the debt was not in fact canceled, but that the note was held by Boeck as a live note and the mortgage lien as a live lien. But that allegation is evidently merely the construction of the pleader put upon the written contract and is not admitted by the demurrer. The court below did not construe it that way, neither do we.

The bill alleges that the mortgage was not satisfied on the record until the Arnold sale, and that Boeck retained possession of the note and mortgage. The possession of the securities is an incident but not a controlling one in determining the issue of law raised by the demurrer of mortgage or no mortgage. It might have been controlling in the absence of the express provisions 'of the contract that the debt was canceled ; but we know of no rule of law to the effect that a written agreement between the debtor and creditor, supported by a valid consideration, may not provide for, and result in, the cancellation of a debt, although the evidence of the original debt may thereafter in fact remain in the possession of the creditor. In this case the bill does not show whether Boeck or Donovan held possession of the written contract. Presumably Donovan had the possession since it- was for his benefit. As the amount to be paid for the repurchase was the exact amount of the canceled note, it is not unreasonable to suppose that, while Donovan held the contract, Boeck,held the note and mortgage as data evidencing the amount Donovan was to pay him for a retransfer of the property if the latter sought to enforce ’ the contract.

(b) Under the allegations of the bill, Boeck at one time held a perfect mortgage security in the usual form. Whether that mortgage provided for a sale without foreclosure suit, or whether the statutes of Ulinois allow a sale without foreclosure suit, we are not informed. Presumably, however, there is a well-beaten path in the jurisprudence of Illinois for foreclosures of mortgages by an ordinary bill in court, or out by a public sale, and that path was open to Boeck at one time. Under the scant and vague allegations of this bill there is nothing by which it can be inferred by a most liberal construction of the contract, that, Boeck intended to or did surrender his perfect mortgage, and in lieu of it took a contract raising an equitable mortgage with its attending shadows and uncertainties; and, cancelling a plain promissory note, a direct and express promise to pay a loan of money, took in lieu thereof a mere implied promise to pay a debt, as appellant says the contract means. Men do not usually act that way. Mortgagees, of all men, are not prone to exchange the certain and fast for the unknown and loose, the express promise for an implied one. The fable of the dog letting go his dinner of meat in mouth to grasp its shadow in the water is in point.

The case at bar is within the doctrine of the cases cited supra. Among them Bailey v. St. Louis Trust Co. is on all fours in its essential features. One of the syllabi of that case correctly formulates the gist of it and reads: “Where the mortgagor by quitclaim deed, absolute on its face, conveys property to the mortgagee and enters into a concurrent agreement to reconvey on condition, and there is nothing, either in the deed or in the concurrent agreement or in the circumstances, to indicate that the deed was given as a mere security for the debt, it will not be held to be such. And the fact that the mortgagee at the time had a deed of trust on the property to secure his debt would indicate that he would not have exchanged this better form of security for such an equitable mortgage, but that the quitclaim was made to prevent a foreclosure sale under that better security.”

It is argued that the contract uses the phrase, “indebtedness as aforesaid,” and therefore an indebtedness is recognized as existing; but will it do to leaven the whole lump of the contract with that small particle of leaven and reconstruct the whole contract around that single phrase (one of wide meaning, and taking on color from its context), in the teeth of other provisions reciting that the mortgage debt is canceled ? The contractual phrase, “indebtedness as aforesaid,” follows other provisions relating to the amount to be paid by Donovan for a reconveyance. It is fairly susceptible to the interpretation that it was intended to earmark that amount, rather than to the interpretation of being a recognition of a subsisting enforceable original debt in a technical sense. In other words, construing the phrase by its context, the company it keeps, we think it should he held to mean that in ease of a repurchase under the terms of the contract, the obligation to pay, to-wit, the “indebtedness,” is in the sum of $7,780, plus taxes, insurance and repairs, less the rents accruing.

There is another clause in the contract to be reckoned with, vis., the provision that: “It is expressly understood between the parties hereto that this instrument shall not be construed as a mortgage. ’ ’ Of this clause it may be observed that if, in giving effect to its real legal intendment, the contract appears to be a mortgage, then that legal intendment would not be evaded or emasculated by the insertion of a provision that the contract was no mortgage. The piercing eye of the chancellor would look through the thin shell of such hoodwinking phrase and see the kernel of the thing itself. But we are cited to no case holding that parties may not interpret their own contracts by provisions to that effect; and we know of no principle of law or equity that is impinged upon by such contractual interpretation, if occasion exists for its use. Take the case at bar. Here was a creditor and a debtor, a mortgagor and a mortgagee. For the benefit of the debtor they are about to change their relations and enter into a new contract. The draftsman presumably knew that whether a contract evidencing that new relationship became a mortgage or an absolute conveyance with a conditional right to repurchase, taken back by the debtor, was a question of concern narrowly watched by a court of conscience. "What more natural under those circumstances than that the matter was talked over and that (to clear up all doubt, out of abundance of caution) it should be agreed that the contract should not he construed as a mortgage? _ If part of their contract was to the effect that their new deal should not constitute a mortgage, why may the contract not say so? No court would permit itself to be swayed by such a provision in a contract if it once became apparent that its nse was a cunning contrivance to defeat the object and intendment of the whole instrument, or if its appearance in the instrument was obviously referable to surprise, accident or a fraudulent design to catch an ignorant or unwary party on the hip. But, as said, there are no such allegations here, and we are of the opinion that some effect must be given to that provision of the contract.

On the whole case the chancellor did not err in construing the written contract to be a conditional sale and not a mortgage. When we stamp that interpretation on it, the mere conclusions of the pleader to the contrary become of no account on demurrer.

Y. It is argued by respondent that the bill on its face shows such laches as would defeat an accounting upon the theory that the contract evidenced a conditional sale and not a mortgage. The bill shows that Donovan was to pay Boeck the purchase price on or before February 5, 1903. The suit was instituted November 19, 1904 — a year and two-thirds after the option ran out. There is no averment that prior to that date, or prior to suit, the purchase money was tendered and an accounting demanded or any steps towards performance taken by Donovan. Respondent’s learned counsel further argue that the contract being an optional contract, time is of its essence, that one who seeks to enforce an option for the purchase of real estate must by his bill show himself prompt, eager and desirous of performing; that laches need not be pleaded by answer but may be invoked as a conclusion of law on the averments of the bill as well as on facts established by evidence. [Stevenson v. Smith, 189 Mo. l. c. 466.] We are cited to an array of authorities holding that time is of the essence of an option contract and that prompt performance must be tendered, or legally excused; for example, 4 Kent, Comm., p. 144; Mason v. Payne, 47 Mo. 517; Glass v. Rowe, 103 Mo. 513; Hollmann v. Conlon, 143 Mo. 369; Davis v. Petty, 147 Mo. 374; Green v. Covillaud, 10 Cal. 317; Dunaway v. Day, 163 Mo. 415. But we deem the propositions stated and the authorities cited as afield; because, the hill does not count on the theory of a conditional sale. Therefore the question of laches on the part of the plaintiff whQ makes no averments of tender and performance of a conditional sale and pleads no excuse whatever for non-performance, however pertinent in a proper case, is in the air in the case at bar.

We conclude the judgment should he affirmed. It is so ordered.

All concur.