
    Jane E. Smith, Respondent, v. Eugene C. Zimmerman, Appellant.
    Kansas City Court of Appeals,
    December 5, 1892.
    1. Practice, Appellate: saving exceptions, in motion foe new trial. Though exceptions be saved at the time to the admission of evidence the appellate court cannot consider them, unless they are further saved in the motion for a new trial.
    2. -: review of law and not of facts. The appellate court has only power to review the law, and must assume the facts to be as found by the trial court.
    3. Limitations: credits: presumption as to entry of. A credit entered by the payee on a promissory note within ten years from its execution raises the presumption that actual payment was made at that time; and if made within ten years before bringing suit on such note is sufficient evidence to take the note out of the operation of the statute of limitation.
    
      Appeal -from the Buchanan Circuit Court. — Hon. O. M. Spencer, Judge.
    Affirmed.
    
      
      Eugene C. Zimmerman, for appellant.
    (1) The note was barred by the statute of limitation over eleven years, when suit was brought on the third day of July, 1884. Respondent sought to avoid the effect of the statute by proving that the sum of $50 had been paid upon the note by appellant on the fourth day of July, 1874. The indorsement by which this is sought to be effected is in pencil, and is as follows: ‘ ‘ July 4, by cash $50.” The year of the pretended payment is not mentioned. Respondent, over the objection of appellant, attempted to prove by the deposition of one Conrad that while in the employ of O. M. Smith he gave appellant, E. C.'Zimmerman, credit in a book on the fourth of July, 1874, for $50. The respondent desired the court to draw the inference from this evidence that the $50 so credited was the $50 indorsed upon the note, to which no year was given. The book itself containing this credit would not be admissible in evidence. Weadley v. Toney, 24 Mo. App. 304; Milling Co. v. Walsh, 37 Mo. App. 567; Anderson v. Votmeyer, 83 Mo. 404; Cozens v. Ba/rrett, 23 Mo. 545; Blacksmith v. Wrecking Co., 19 Mo. App. 162. Entries from the private books of the opposite party are inadmissible if objected to, unless it be shown that the objecting party had made them, authorized their making or assented to their correctness. Angelí on Limitations, pp. 263, 306. Book entries are not evidence in favor of the party making them, and the party’s death does not change the rule. Rensgen v. Mullaly, 23 Mo. App. 613; Rensgen v. Donnelly, 24 Mo. App. 398; Cozens v. Barrett, 23 Mo. 544; Robertson v. Reed, 38 Mo. App. 32, (2) In some of the states it is held that an indorsement made upon the back of a note, when it was against the interest of the holder of the note to have made it, is prima facie 
      ■evidence of the fact that the money was paid at the time it-purports to have been paid, but it devolves upon the holder of the note to prove that it was made at the time it purports to have been made. The indorsement itself to be admissible, and to come within this rule, must be dated and perfect in every other respect. Tou ■cannot bolster up and make an indorsement which is imperfect in itself evidence by the introduction of other ■evidence. As an indorsement raising this prima facie presumption, it must be dated; otherwise it could not and would not raise the presumption that it was made at the time it purports to have been made; without a date it does not purport to be made at any time. If the indorsement does not purport to be made contemporaneously with the' receipt of the money it is inadmissible as part of the “res gestee1 Grreenleaf [9 Ed.] pp. 182, 183; 8 Mete. 352; 72 Mo. 131; 52 Mo. 197; 24 Miss. 92, 391.
    
      Vories & Vories, for respondent.
    (1) The presumption is that the credit indorse-ments were made in the order as they appear on the note. The last preceding indorsement having been made in February, 1874, the indorsement in question -could not have been made at an earlier date than July, 1874, and, therefore, would have taken the note out of the statute without the aid of the books introduced in evidence. The books were not necessary evidence, but corroborated and made certain the presumption already existing. Grelle v. Loxen, 7 Mo. App. 97; 2 Randolph • on Commercial Paper, sec. 781; Connelly v. Bourg, 16 La. Ann. 108. (2) An indorsement made :at a time when it is against the interest of the holder making it, is sufficient evidence of payment at that time, and will .take it out of the operation of the statute. Randolph on Commercial Paper, sec. 1624; Carter v. Carter, 44 Mo. 195; Goclclard v. Williamson, 72 Mo. 131; Loewer v. Haug, 20 Mo. App. 164. (3) It having been shown-by evidence the books of respondent were accurately kept, and that therein were entered a record of all daily transactions and payments on notes, etc., made that day from slips furnished by Smith, the books were properly admissible in evidence, to show the exact date of payment, and especially is this true when the entry is against the interest of the party making it. Smith-v. Beattie, 57 Mo. 281; Mathias v. O’Neill, 94 Mo. 521;. Weadley v. Toney, 24 Mo. App. 304; 1 Greenleaf on. Evidence [14 Ed.] secs. 116, 120, 121.
   Smith, P. J.

This was a suit commenced on July 3, 1884, on a promissory note dated February 24,1873, due thirty days after date, for the sum of $507, with a number of credits thereon indoi’sed, the last of which was for $50, date July 4, 1874. The defense-was the statute of limitations. The plaintiff had. judgment, and the defendant appeals.

The defendant insists that the trial court erred in-the admission of certain evidence, but upon examination of the motion for the new trial this error is not made one of the grounds therefor, so that we cannot, review the action' of the court in that respect. Although the exception to the evidence was saved, it was not. reviewed in the motion for a new trial, and must, therefore, be deemed a waiver. Kinion v. Railroad, 39 Mo. App. 574; Bevin v. Powell, 11 Mo. App. 216, and. cases there cited.

The cause was submitted to the court sitting as a. jury. The facts were passed upon by the circuit court, and they are, therefore, incontrovertible here. This court has only the power to review the law declared by that court, and as it was intrusted with both facts and. law we must assume the facts to be as that court found them to be. Swayze v. Bride, 34 Mo. App. 414; Gains v. Fender, 82 Mo. 509; Hamilton v. Boggess, 63 Mo. 233.

The court at the instance of the plaintiff declared the law of the case to be that even though the note on its face is barred by the statute of limitations, yet the evidence shows that a credit indorsement was made on said note by O. M. Smith, the payee, at a time less than ten years after the execution of said note, and less than ten years before the bringing of this suit; the credit indorsement having been made at a time when it was against the interest of the payee to make it, the presumption is that actual payment was made at that time, and this is sufficient evidence to take the note out of the operation of the statute. The rule of law announced by this instruction is unexceptionably correct. Loewer v. Haug, 20 Mo. App. 163; Goddard v. Williamson, 72 Mo. 131; Carter v. Carter, 44 Mo. 195.

No error is perceived in the action of the court in the refusing of defendant’s instructions.

The judgment seems to be for the right party, and must be affirmed.

All concur.  