— On September 18, 1899, plaintiff began suit before a justice of the peace in the city of St. Louis on the following promissory notes:
*449“St. Lords, Mo., July 13, 1874.
“$-.
“Sis months after date, I promise to pay to the order of [stamp] Henry Wilden, two hundred dollars, for value received, negotiable and payable without defalcation 'or discount, at the Citizens’ Savings Bank, St. Louis, and with interest from date at the rate of ten per cent per annum.
“Alex McAlijstee.
“No.-.
“Due- — .
On the back of said note the following is written:
“April 22, 1895, received $7.50 (seven dollars fifty cents) on account of this note.
“HeNey WildeN.”
And on account for moneys loaned, the first item of which is dated May 15, 1878, and the last one January 21, 1879. The aggregate of the account is $295, upon which credits wrere given to February 4, 1884, which'reduced the account to $155. After this date the following additional credits were given on the account: June 9, 1885, fifty dollars; September 19, 1885, twenty-five dollars; September 19, 1885, fifteen dollars, and April 22, 1895,’ seven and one-half dollars, leaving a balance due of $196.68, including interest.
The answer of defendant alleged that the note should have been for one hundred dollars instead of two hundred dollars; that it was made for two hundred dollars through fraud or mistake; pleaded payment and the bar of the ten-year statute of limitations; denied the account and pleaded the five-year statute of limitations. The answer was sworn to.
A change of venue was taken from the justice before *450whom the suit was brought to another justice, where a trial was had which resulted in a verdict for the defendant.
Plaintiff appealed to the circuit court. On a trial de novo, to the court sitting as a jury, there was a finding and judgment for the plaintiff for the amount found due on both the note and the account. After an unavailing motion for a new trial, defendant appealed.
Plaintiff offered evidence tending to prove the validity of the note; that it was signed by the defendant; also evidence tending to prove the correctness of his account.
The defendant was not present at the trial and no evidence was offered on his behalf. His absence was accounted for by the certificate of his physician, showing he was confined by sickness in the State of Illinois and was unable to attend court.
Plaintiff’s evidence showed that the credit of $7.50 on April 22, 1895, indorsed on the note, and the like credit on the same date given to the account, were given on account of a payment of fifteen dollars made to him between the twenty-second and twenty-eighth of April, 1895, by the wife of the defendant. His testimony about this payment is, that he was sick in bed and that Mrs. McAllister paid the money to him while he was in bed. He was asked what she said when she paid it. His answer was: “She said, ‘My sister-in-law said I was lying sick and I needed some money,’ and that the “Old Man” had given her — her husband — ‘said the “Old Man” had given her fifteen dollars to bring down to me’ and I thanked her and told her to make out a receipt for it. ‘No, damn it,’ she said, ‘you will not.’ She says, ‘We borrowed money from you, and we owe-you money and we never give any receipt, and I won’t have any recéipt.’ ”
This evidence was objected to on the ground that Mrs. McAllister was dead. It was admitted that she was dead. The court overruled the objection, to which ruling defendant saved an exception.
*451It was admitted that tbe credit of $7.50 made April 22, 1895, was not indorsed on tbe note or account until tbe fall of 1899, a short time before tbe commencement of tbe suit.
I. By tbe provisions of section 4656, Revised Statutes of 1899, a married woman is a competent witness in a civil suit or proceeding in tbe name of or against ber busband “in all matters of business transactions when tbe transaction was had and conducted by such married woman as tbe agent of ber husband,” except as to admissions of tbe conversations of ber busband made to herself or to a third party in ber bearing. Tbe only competent evidence that Mrs. McAllister acted as tbe agent of her husband in tbe payment of tbe fifteen dollars is found in the testimony of Mrs. Cady, who stated that Mc-Allister told ber in tbe month of April, 1895, that be would send plaintiff some money by bis wife as soon as be got a certain bouse done. This is very slight evidence of agency, but tbe trial court deemed it sufficient and for tbe nonce we will pass it without further comment. Conceding that Mrs. McAllister was tbe agent of ber busband to malm tbe transaction — pay plaintiff fifteen dollars — she being dead? plaintiff was not a competent witness (be being tbe other party to tbe transaction) to testify as to what was done or said between himself and Mrs. McAllister as tbe agent of her busband in respect to tbe transaction, and tbe admission of plaintiff’s evidence as to what Mrs. McAllister did or said was error. Hollinan v. Lange, 143 Mo. loe. cit. 106, and cases cited.
II. To take the note and account out of the operation of tbe ten and tbe five-year statutes of limitations, plaintiff relies upon tbe application of credits made by him of tbe fifteen dollars in April, 1895.
In Beck v. Haas, 111 Mo. 264, it was ruled that “a creditor to whom money is paid by bis debtor without direction, may apply one-balf tbe sum as a credit on one demand and one-half on another, provided neither debt is barred by tbe statute of limitations.” That rule “as generally understood *452in this State allows a creditor to appropriate a payment in tbe manner most to bis interest wben tbe debtor bimself waives tbe right, provided tbe application be makes does not affect inequitably the debtor.”
In Beck v. Haas, 31 Mo. App. loc. cit. 184, it was ruled that where a creditor has two several items against a debtor, one barred by tbe statute of limitations and tbe other not, and a part payment by tbe debtor (without an express appropriation by him as to which of tbe debts it is to apply to) is made, tbe creditor is at liberty to appropriate tbe payment toward tbe satisfaction of that portion of tbe debt which the statute would bar, and such appropriation would revive tbe debt, .citing Mills v. Fowkes, 7 Scott 444; Williams v. Griffith, 5 Mees. & W. 300, and Wood on Limitations, sec. 110, in support.
In Mills v. Eowkes, supra, it was held that in circumstances like those in Beck v. Haas, a creditor might appropriate tbe payment to tbe demand barred by tbe limitation, but to take the demand out of tbe operation of tbe statute, tbe payment must be especially made on account of tbe debt barred. In tbe same case, reported in 5 Bing. N. 0. 555, it was held that while tbe creditor might apply tbe payment to tbe barred debt, such application would not take it out of tbe statute of limitations. Williams v. Griffith, 5 Mees. & W. 300, followed Mills v. Fowkes, 7 Scott 444.
Wood on Limitations says: “It seems, according to some of tbe cases, that where there are several notes barred by tbe statute and a general payment is made be (tbe creditor) may so appropriate tbe money as to take all of them out of tbe statute,” citing Jackson v. Burke, 1 Dillon (U. S. C. C.) 311, and, Mills v. Fowkes, supra, in support. As we •have seen, Mills v. Fowkes does not support tbe text. In Jackson v. Burke, tbe only question before tbe court was as to tbe right of tbe creditor to split up a payment and give credit to several notes, none of which were barred.
*453In Sanborn v. Cole, 14 L. R. A. (Vt.) 208, it was beld that a note that is barred may be revived by an indorsement made by the creditor without the debtor’s direction or knowledge, when a general payment is made by the debtor without specifying its application. In a note to this case, the learned editor cited Robie v. Briggs, 59 Vt. 448, and Austin v. McClure, 60 Vt. 453, in support of Sanborn v. Cole, and says, “The Vermont doctrine appears to be followed by the Missouri Court of Appeals in Beck v. Haas, 31 Mo. App. 180,” though Mills v. Eowkes is cited for authority for the decision. As holding a contrary doctrine, he cites Mills v. Fowkes, supra; Nash v. Hodgson, 6 DeG. M. & G. 474; Pond v. Williams, 1 Gray 630; Ramsay v. Warner, 97 Mass. 13; Blake v. Sawyer, 12 L. R. A. 712, 83 Me. 129.
In Heath v. Grenell, 61 Barb. (N. Y.) 190, it was held that a creditor could not apply a general payment in discharge of a debt barred by the statute of limitations. The only authority we have been able to find in support of the doctrine that a creditor having two debts, one barred and the other not, can apply a general payment by his debtor to the older debt in the absence of specific directions and thus take the Claim out of the statute, is in the Vermont cases. Beck v. Haas, 31 Mo. App. supra, was decided on the authority of Mills v. Fowkes, which we have seen holds to the contrary. The part payment of a debt barred by the statute of limitations takes it out of the operation of the statute on the theory that the debtor making the payment recognizes the continued existence of the debt.
Munger on the Application of Payments, p. 38, says: “An unappropriated payment may be credited by the receiver upon a demand against which the statute of limitations has run. Such an appropriation, however, will not have the effect to take the debt out of the operation of the statute. The debtor is not presumed to have intended to renew a promise which is no longer legally binding upon him although *454he has put in his creditor’s power to satisfy, pro tanto, a claim upon which he has lost his legal remedy.”
In Armistead v. Brooke, 18 Ark. 521, it was held that the part payment,'to have the effect to take a debt out of the operation of the statute, must be an appropriated payment on the part of the debtor. This seems to us to be the more reasonable doctrine and is best supported by authority. Following it, we hold that the appropriations of the payment of fifteen dollars by the plaintiff did not have the effect to revive the debts and that the judgment should be reversed. It is so ordered.’
As this opinion is in conflict with Beck v. Haas, 31 Mo. App., in compliance with the requirements of section 6, article 6, of the Constitution, we certify and transfer the cause to the Supreme Court for its decision.
All concur.