*1 1920. TERM, OCTOBER v. Richter. Allen Comm. West Co. technical avoids the reason and rule accords with
“This jurisdictions pres the in other distinctions invoked plea insanity, interfere tends to of a of which ence with wholesome administration law. criminal of the always sanity presumption the obtains in of The (State proof countervailing v. Barker, absence of jury 544) the case, not removed in this l. c. was preponderance the reasonably of from a satisfied of the time' sane at the that the defendant evidence of crime.” commission the interfer- no
As Rose we cause case, find ing finding. with judgment trial court therefore affirmed.
All concur. Appellant, COMPANY, COMMISSION
ALLEN WEST RICHTER. v. GUSTAV Two, 7, 1921. Division March Guaranty Pay Debt: Uncertain CONTRACT: to Another’s Amount: 1. nothing there on the face Extrinsic Oral Evidence. If (cid:127) promise pay to debt indicate the another’s to amount written debtor, deducting after creditor from claimed to be due made, to and the due allowances which said were balance deducting be ascertained said allowances can deter- after and. evidence, only by the creditor resort extrinsic oral can- mined not, Frauds, guaranty, on said for it under Statute of recover by testimony. pieced supplied cannot be out or its deficiencies oral promise pay -:-: Consideration. A 2. mere written debt, created, obliga- had been another’s made no after having guarantor been assumed at same tion consideration, contracted, is without or before the debt was time guarantor promise subsequent see written and such against liability of the paid favor him debt is no creates creditor. fact -: -: mere -: Forbearance. The
3. creditor, receiving of defendant after the written forbear, any agreement debtor, an insolvent without the debt of suing debtor, considera- not constitute a refrained promise. tion for said C92 SUPREME OP COURT MISSOURI.
Allen West Comm. Co. being By Corporate There -: —i-: President Debtor. president tending evidence show *2 corporate sued on debtor indebtedness insolvent when unpaid contracted, that to it for or he stock or was was indebted being otherwise, "peti- kind in the issue of that tendered tion, promise pay written the debt a consideration for his to corporation implied cannot inferred or said insolvent be from president. that he at one time its the fact Presumption Theory. of Consideration: -: -: Trial 5. It appeal 2774, not ruled on in this case Section will Revised presumption prom- authorized the written Statutes imported pay consideration, to another’s on a ise debt sued be- theory, first, appeal the case not tided on such cause: and on theory adopted below; second, held must be to the alleged petition plaintiff in its the consideration of the promise debtor, was its forbearance to sue the and it there- must recover, all, upon and, allegation; third, pre- fore if sumption indulged only can be in the absence of evidence on the subject, petition having alleged and the that forbearance sue to consideration, being presented jury that issue plaintiff, a verdict returned for it is not entitled to such presumption. 6. —i-: -: Testify. -: Failure of to Guarantor The con- promise tention that a consideration pay defendant’s presumed another’s debt testify should be because he did not can- (a) party not be if allowed with whom he dealt was dead at trial, (b) plaintiff the time of the prima- to make failed a facie case. Appeal City St. Louis Circuit Court. —Hon. Frank-
lin Ferriss, Judge.
Affirmed. 8. H. West and Anderson, Gilbert Hayden & °
appellant.
(1) Consideration is presumed from signature. y. R. sec. 2774; S. Wulze Schaefer, 37 Mo. App. 551. it And is necessary plead any consideration. Eyermann v. 151 Pirón, 115; Montgomery County v. Auchley, 126. (2) Under the Statute Frauds unnecessary state consideration in 693 1920. TERM, OCTOBER West Comm. Co.
Allen
Nabb,
another. Little v.
promise
pay
debt of
Standard
Griswold,
496;
Yt.
3; Roberts v.
Mc-
Company
456;
v.
Supply
Finch, 154 C.
Black
v.
N.
King v.
128;
Evans,
Ohio,
128; Reid
Bain, 32 Ga.
v.
v.
A. & Furth for re- spondent. writing
(1) A” “Exhibit The declared on as a agreement, undertaking guaranty, an not, fact, or is 694 SUPREME COURT OP MISSOURI.
Allen
Comm.
West
Co.
expression
merely
promise,
the defendant’s
but
an
(2)
expectation.
purpose
No consideration
or
intent,
signature
presumed
“Exhibit
from defendant’s
can be
writing
not
R. S.
as
A” under Sec.
statute,
(b)
(a)
promise,
No
It
is not
within the
mentioned,
(c)
money
property
is therein
sum of
made,
paper
were to
face shows
be
The
on its
allowances
(d)
must
reference
be had
amount,
To
determine
by
independent
writing'
not identified
an
document
testimony,
(e)
Neither the
but
oral
itself,
original
name
writing
nor creditor is
debtor
mentioned
(3)
paper
what the
referred
to indicate
to.
“
parol
admitting
1”
Exhibit
evidence,
court erred
papers
connect
admissible to
a series
evidence
signed
writing
Frauds;
Statute of
under
charged
identify
itself
must
Biest
party
them.
Versteeg
App.
Peycke
v.
Co.,
154;
Shoe
97 Mo.
v. Ahrens,
Leesley
App.
v. Fruit
456;
Bros.
162
Co., Mo.
Baptist
App. 195;
Fecht,
Johnson v.
First
335;
Bigelow, Wend. 28;
Church v.
Buck,
16
Johnson
35
v.
N.
Frank
338;
Miller,
450;
J. L.
v.
38 Md.
v. Los-
Ordman
Darge
Ridgeway
sen, Md.
v.
Md.
135;
Bond, 46
164;
Ingram,
(4)
v.
543, L. E. A. 19 Horspool, App. v. 360; v. Mandle Woolfork, Mo. previous parol (7) Assuming App. that a 655. (which not), proven
promise neverthe- it was had been Waggoner promise less without consideration, such support App. could not 344, and Davidson, subsequent v. 189 Mo. promise without consideration.
a
written
v.
327;
Jenks,
MacFarland
127 Mo.
Iron Co.
Heim,
v.
Mass. 95; Guillott v.
Guimarian
Guillott,
(8)
parol promise was
E.
Co.,
Trust
319.
As
S.
plaintiff
pleaded,
properly introduce evidence
could not
admitting
thereof, and
court
such evidence.
erred
(9)
95.
Iron
Mass.
Neither a
Co.
Jenks,
obligation
against
legal
rests
stockholder
nor a moral
corporation;
pay
hence a
the debts of his
supported by a
enforcible,
him to
be
so,
do
must
law
not
consideration;
furthermore,
valuable
Waggoner
obligations.
purely
v. David-
moral
enforce
(cid:127)
App.
Greenham
EAILEY, City September Court of the on 14, Circuit St. Louis, petition alleges plaintiff 1917. The a Missouri corporation; that the Store also September corporation; that on there 1,1914, Missouri plaintiff, company, was due from named the sum the last per account then $10,755.13, “that on rendered; writing, defendant, November herewith guaranteed A,’ marked filed and ‘Exhibit plaintiff prosecute sum, said forebore has thereof; said claim consideration frequently payment of sum defend- demanded but has failed refused to ant, *5 SUPREME COURT OP MISSOURI. Allen West Gomm. Co. prays judgment against plaintiff Wherefore,
the same. together of in- for the sum with $10,755.13, defendant percent per at the rate of six annum from Novem- terest 1, 1914, and costs.” ber for its general answer contained denial,
The amended and following: also the says defense, for further defendant al-
“And that, petition charges though alleged defendant an special promise yet to answer of another, alleged agreement upon brought which the action is writing, any is not there nor is memorandum or note signed writing, by thereof in person the defendant or some other lawfully him thereto authorized. “And for another and further defense, defendant says alleged that there was consideration for his said promise. having fully
“Wherefore, answered, defendant prays discharged to be hence with his costs.” reply general was denial of matter the new pleaded in defendant’s answer. amended
Amos T. Skinner was sworn as a witness testi- secretarjr substantially fied That follows: he was Company, treasurer the Allen West Commission corresponding whose officewas at Little Rock, Arkansas; plaintiff that to do active ceased business about the 1st January, 1916, about four after months Mr. death. Allen’s point objected
At this counsel for defendant any testimony, introduction further for the reason petition fails to a cause of action; state it does any not set forth that there was consideration guaranty. objection the execution This exception an overruled and saved. further
Witness testified in substance that he connected with again from 1888'until 1893, during date of 1904 to trial; times, above he knew was, sight; him knew who. plaintiff’s after 1904 defendant was in office, and wit- year frequently ness him saw for a during or so; that OCTOBER, TERM, *6 v. Richter. Allen West Comm. Co. Piggott president of Store tlie time defendant was
tMs during plaintiff, did business Company, time, that and president; through company, as its defendant with said kept read all plaintiff’s and saw books, that witness Piggott correspondence, and sent a statement its kept every year he Company while defendant to Store September 1914, inclusive. up to books, he witness, and Exhibit was shown Plaintiff’s his form was in this the amount stated .in that testified handwriting; handwriting; not in his that the date was top form his hand- is in name that the is the cor- writing; amount certain the stated that ishe Exhibit date; that account on of that that at St. rect balance 1 was sent to signed plaintiff’s Louis, Missouri, office ex-president;” that was received it Richter, “G. having through recall the mail. Witness not back envelope containing opened it that he saw in it; say wheth- not in. could -mail that He batch of come had something else; attached itself or er was it they were to- Exhibit it with he saw it while was letter; gether with the other statement that he saw no ; ’ opened sometimes Allen the mail, witness sometimes (wit- opened it; opened he Homer it, sometimes ness) at the testified that mail. Witness saw all defendant, there was at- 1 time he sent Exhibit Store it itemized account of an tached plaintiff. with “Exhibit A.” It evidence, offered in its The latter Building, Rialto St. Richter, the letter-head G. is on reads follows: as Missouri, Louis, 1914. Allen West Commission Com- 1st, “November Referring pany. enclosed which statement, Gents: though beg you to inform the debt I K., is O. paid; your Mr. I intend to Allen mine, see Respectfully, G. will be made. allowances that certain ’’ Richter. 1” its “Exhibit in evidence also offered Plaintiff ex-president,” signature is con- Richter, “G. as the far objected “A” “1” Both were cerned. exhibits SUPREME COURT OP MISSOURI. Allen West Comm. Co. hereafter referred reasons to,,
objections and both exhibits ad- overruled, were were mitted evidence. 1”
Said “Exhibit follows: reads as Company. “Piggott Ghistav St. Richter, Store Louis, Missouri. Company, Mis- Louis,
“Allen Commission West St. souri. your have statement
“Gentlemen: We examined September 1, 1914, of our account which shows dated a- $10,755.13, debt balance of same we find *7 exceptions with the noted below. be correct “ truly, (Signed) Yours G. Ex-President.— Richter, “Exceptions: agreed Mr. that Allen the account adjusted paid.” is to be when Skinner testified after further that receiv-
Witness steps ing plaintiff took the above collect to guaranty, Piggott Company. from the account said Store cross-examination, witness said that On he under- Piggott gone Store had the out of stood busi- prior to ness 3905. secretary Horner, P. who
Edward and treasurer up plaintiff to time of of Allen’s testified death, that substance, defendant; he knew that he had a con- in with defendant versation he called on de- pay account; said fendant defendant then told promised pay that he witness that had Mr. Allen to it and expected pay it as he soon he he could; always promised pay agreed told witness he it, to it, pay expected objected it. He never ac- always promised he had count. Said Allen to it. Piggott cross-examination, said On he Store Com- pany was insolvent. substantially the testimony above was all in the plaintiff’s At
cause. of case, close defendant inter- posed a demurrer to evidence, was overruled exception an saved. Defendant offered no evidence, upon its court, but stood demurrer. The of mo- its own gave jury following tion, instruction: OCTOBER TEEM,
Allen West Comm. Co. signed you evidence, tlxat from tlie “If find defendant 1914, and with of November mailed same the letter rely- plaintiff paper ‘Exhibit 1’ to and that marked prose- ing plaintiff thereafter refrained same from on Piggott against Company, cuting its Store claim you signing mailing prior if find plaintiff only to defendant letter he Company, you Store then said account $10,755.13, with interest six find for will . will find per January 1, to date. You cent from your separately principal verdict, and interest aggregate principal interest and also state your verdict.” jury, submitted and the latter The cause .the Judgment for $12,881.03. was entered a returned verdict time,- Defendant, form on said verdict. due in due containing trial, a new seventeen motion for filed his grounds, granted a defendant new The court below etc. ap- mentioned. hereafter Plaintiff trial, pealed for reasons granting trial. order new Judge judicial passing acts In Fee- I. granting trial cause, new in this we have deemed kiss, part opinion, of our appropriate as a Ms out, to set it- *8 sustaining mo- the record, in memorandum, found caption signature, fol- it and reads tion. Without : lows guaranty on in. case contains declared this
“The point fact no of consideration, and consideration no proved. a forbearance. that there was The claimed “It was plaintiff pressing refrained the that fact the mere corporation a against not constitute does the claim sense; legal guranty in a forbearance plaintiff is evidence that forbear; there ask the apparent it forbear, is the against prosecuted plaintiff could have the claim the guar- any notwithstanding corporation time, this the anty. SUPREME COURT OF MISSOURI.
Allen West Comm. Co. engage- lias “Forbearance been ‘an defined be which, up ment ties hands of act the It an creditor. is a depriving by obliga- something" of the creditor himself tory power p. of [3 the to sued Words and Phrases, “Again: promisee any ‘If the conld sued at have breaking time without his actual contract, extension ’ ‘[Page is time no' sec. on Contracts, consideration. 2868.] guaranty by
“It follows from this is insuffi- the unsupported testimony. on cient its face impressed argument by against “I am not sup- permitting action the court parol evidence to plement purpose identifying for the ‘Exhibit A’ alleged guaranty statement. it is true While that an papers up yet made it of different them, should refer to a, particular competent paper must be to show that guaranty. one referred “I think, however, statement enclosed sufficiently to in A’ referred ‘Eixhibit identified. prior parol promise Evidence of es- debt, pecially without consideration, did not make- sub- sequent written without consideration valid. negatives Two cannot make an affirmative. opinion
“I am, therefore, of that the court erred refusing peremptory m instruction de- offered plaintiff’s fendant at the close and also erred case, given the instructions the court, both as to question prior alleged of forbearance oral promise.
“For these reasons motion a new will trial be sustained.” pass questions
We will to' 'consideration of the by appellant assignment raised its of errors.
II. In order to1 obviate the consideration of un necessary questions, may pur conceded, pose of the exhibits case, “1,” “A” and heretofore *9 by
set out, were attached and defendant mailed plaintiff prior 1, November about Amount Due. latter date, and after debt from! due Vol. OCTOBER TERM,
Allen West Comm. Richter. Co. the Piggott Store to plaintiff liad Company been con- tracted, and past orally defendant due, plaintiff subject said debt, to certain allowances.
With concessions these made for the purposes of the argument, plaintiff can ac- successfully maintain tion ? A”
Giving to “Exhibit con- plain, common-sense struction, that, means after allow- certain deducting ances from the Piggott Store debt, defend- ant agreed to see remainder of said paid.
Section Revised 1909, provides Statutes that: “No brought action ... shall be charge any person special upon any promise to the debt, ansWer for . . . of another . person, . . unless agree- ment which the action upon shall be brought, some or memorandum note thereof, shall be in writing ’’ signed by the party charged to be therewith.
The plaintiff, having sued A,” “Exhibit an agreement itself between
debt due from Store Company appellant, liability of defendant must, thereunder, view the Statute of Frauds, supra, be measured the terms by A,.” of said “Exhibit is nothing upon
There
the face of either
the latter
or “Exhibit
1,” to indicate the amount claimed
due
after
plaintiff
deducting
allowances
were
to be made.
In other words,
after
the balance
de^-
due
ducting
allowances,
said
could
be ascertained and
determined
resort
to extrinsic
evidence. As there
is nothing in either exhibit “A” or
“1,” indicating
plaintiff
due
balance
after
allowances;
deducting
and as no evidence was
showing
introduced
same,
it has
failed
make out a
under
case
supra.
of Frauds,
Statute
v. Courtney,
[Fox
following; Reigart Coal Coke Co., Mo. 142; Kreis, Co. v. Mo. l. Cement c. 169 et seq.; Anderson *10 p p pp o o mm P t- O CM P P P C m P % O P EH. M i—i v. Richter. Allen West Comm. Co. Spencer, ;540 Duncan Hall, 202 S. W. (Mo. App.) 608-9.]
211 S. W. Judge Ringer l. 523, 524, c. In v. Holtzclaw, speaking Division, for this said: Gantt, subject- Frauds), of if under the “But Statute statute, of contract within the matter tlie is some one in contract or memorandum deficient required by parol statute, of those essentials more supply ¡evidence cannot received to defects, be very thing prohibited by the this to do the statute were slightest This must be obvious1 reflection. any . . . Nor to add another have we inclination exception by. C. statute, since, J., as said Jackson, ojien gates Smith v. in Ga. 338: ‘The flood are Jones, only competency witnesses, wide as and the put requisition left is the this class break-water ’ ’’ writing. contracts, others similar character, Judge Boyd l. Paul, 125 Mo. c. 13, Sherwood, said: place, portion “In the second contract assignment, which was dehors the written of the lease parol,, rested in could- be introduced in evidence plain acting in without contravention of the Statute of your Fraud's. Where memorandum under the statute you piece scant measure cannot it out verbal ’’ additions. The other cases are cited in accord with the law quotations. declared in above
No other appears tending document record to show what allowances were to be made in settle plaintiff’s against ment of demand Store Company. parol respect No evidence was offered in language if matter. Even used (in speaking “Elxhibit A” indebtedness) of said paid,” he intended to “see construed as pay, yet language of said exhibit must be con appears1 clearly sidered as a It whole. reading of both “A” exhibits “1” that defendant agreed the balance deducting due, after al- the- OCTOBER TERM, Allen West Comm. Co.
lowances was to when tlie indebted- make ness was settled. asserting
The defendant is no counterclaim in obligation proof case, and was under no furnish the necessary plaintiff’s case of in take out of the Statute properly trial court, held, Frauda therefore, granting' new defendant a de- trial, latter’s *11 plaintiff’s to murrer should have sus- evidence been tained. sustaining
III. The court below defend held, trial, that: ant’s motion anew “The Consideration. guaranty on contains declared m this case point no of fact consideration, and in no1consideration proved.” was petition alleges:
The herein “That on November writing, 1, the defendant herewith 1914, and filed guaranteed marked ‘Exhibit A,’ and plaintiff ($10,7'5i5.13i), prosecute said and sium forbore to ’’ consideration,
said claim in thereof. jury, The trial court submitted the case the by shown the instruction heretofore the out, set on plaintiff’s theory, that a suffi forbearance sue was consideration, cient etc. Plaintiff tried the below case upon theory, the above is now in this court before and sisting original that the cause should be reversed and its upon theory. verdict re-instated well based It jurisdiction plaintiff established law in this is con theory upon by cluded here the which it case tried the [Brunswick below. Ins. 278 Mo. Co., v. l. c. 162-3, 45; S. W. Franklin v. District, School l. 271 Mo. c. 345; Clifton, S. W. v. 209-10; Bank 263 Mo. l. c. Campbell, v.
Paramore Mo. l. c. St. v. 317; Louis Wright l. Co., Contr. 210 Mo. c. 502, cited; and cases Hamilton, Dice v. 90-1.] 178 Mo. l. c. petition allege, does nor evidence the
show, defendant, at time the due from Piggott Company plaintiff Store was contracted, or prior agreed responsible thereto, to be indebted- for said SUPREME COURT OP MISSOURI.
r- o
Allen West Comm. Co. contrary, any part ness or thereof. On indebted any of said part of defendant contracted, been had was made after same ness canse was submitted which the this is tiieor}'- the instruction given by as1 shown jury, consider As heretofore set there court, out. forbearance to sue except shown, ation mere (notwith on Store its indebtedness Piggott Company case on theory its standing insolvency), so erroneous, clearly submitted to jury trial. court new recognized by the lower granting Unless before time, Store contracted, obligated indebtedness was had same, himself subsequent promise Ms see pay the said indebtedness was without consideration paid, m> there created in favor of reason liability Williams, v. of. Kingsland, Williams [Pfeiffer l. 665-6; Geiger, Mo. c. McMahan v. 6 129-30; 92 Mo. l. c. County Auchley, Montgomery Tucker Gentry, App. cited; cases Woll *12 Loewen, App. man v. et l. c. Eitel v. al., 303; l. Farr, 178 Mo. c. App. 369-70.] below7', IV. court defendant’s mor sustaining The tion for a new held trial, that agreement no properly to the was'shown that plaintiff effect was to forbear suing the as a consideration Company, Store alleged promise pay Forbea defendant’s to rance. company. debt said It does appear not any forbearance from evidence that asked either or Company. defendant Store The latter was shown to be hence, insolvent shown and, reason was a forbearance. asking evidence to relating- to sue fact lies that plaintiff forbearance did sue after “Exhibit A” receiving from defendant. No to sue, forbearance was asked nor was by anybody, any agreement forbear between made Respondent defendant. could have sued the Com- Store at pany, any time after receiving A,,” “Exhibit without any violating legal moral obligation wMch it owed Yol. 286] OCTOBER TERM, 1920.
Allen. West v. Comm. Richter. Co. defendant mere fact that it refrained and, hence, the suing any agree company, insolvent an without forbear, defend ment afforded no consideration for subsequent .promise- pay ant’s of another. County
[Glasscock l. c. Glasscock, Mo. Cass l. City Mo. Oldham, 75 c. 52-3; Gate Nat. Bank l. Elliott, 181 c. S. W. Woolfolk, Powers v. App. Horspool, l. c. and cases 360, cited; Mandle v. App. Ruling 655, c. ; l. S. W. 639 Law, Case p. Page
sec. 70, 659 and cases cited; on sec. Contracts, 2868; 3 Words and 2868.] Phrases, p. appellant
V. It is contended was suf- there proof support ficient as to the de- consideration Company’s fendant’s Store debt, president because defendant had one time been the corporation. of this is no insolvent There President tending evidence in the record show that of Debtor P'iggott Corporation. defendant awas stockholder in the Company controversy when
Store debt in appear Nor from the contracted. evidence he was account Store indebted on unpaid ten- stock or otherwise. No such issue petition, contrary in the but latter al- dered on unambiguous plain, leged, terms, that defendant ‘ ‘ guaranteed plain- said sum, and prosecute tiff claim in consideration forbore contention, thereof.” This' on the facts before us, without merit and overruled. by respondent It
VI. is likewise insisted granting trial error court new committed trial, because Revised Section Statutes au- presumption thorized “Exhibit on A,” sued *13 consideration, imported cause, in this Having the the reached conclusion that Presumption of Consideration. alleged agreement controversy is in with- Paragraph in the Statute Frauds, as shown Two opinion, necessary of this we do not deem it determine might presumed, whether a consideration Sec- be under 706 COURT OP MISSOURI. SUPREME r.
Allen West Comm. Co. RicMe.r. upon in this case as facts outlined tion the based 2774, supra, paragraph reasons: several two for below on case not tried Because the First: theory. any such appellant seeking in this court Because
Second: judgment remanded, its and presented reversed, to have case the facts issues to the the re-instated, on urged. theory presented no such could, trial where plaintiff must cited, the authorities heretofore Under theory adopted by in the court hold be here below. even, sufficient Because, if the were
Third: showing, yet, prima under facie Section to make a petition alleged its forbearance as1 promise, it must re for said sue was cover, consideration petition. allegations upon its if all, [Byers l. 571;; Inv. 219 S. Zasemowich Essex W. c. Co., Mfg. c. v. Met. St. Co., S. W. l. Am. Roscoe Ry. Co., L. Mo. McGrath St. Transit Co., Ry. cited; 105; and cases McManamee v. c. l. in, might Many, 440.] other cases State Co., Mo. foregoing same effect. "While the were be cited negligence yet principles cases, stated therein law1 equal apply force to the at bar. with case opinion petition, are of that where the We like specifically alleges us, case forbearance to before recovery promise, sue consideration can sustained under1 Section Revised Statutes be theory might pre 1909, on the that a consideration n presented if had been sumed, matter in the even trial court. presumption Fourth: Because a be in can subject. dulged the absence of evidence on In petition alleges this case forbearance to sue promise. was the consideration for This presented upon jury issue in the belowr, court plaintiff. verdict was returned latter The. insisting here should convict the trial court we setting error, aside verdict, its based the al- *14 28 TEEM, OCTOBER 707 G] y. Comm.
Allen. West Richter. Co. reference to plaintiff’s petition, without legation any case, If we should reverse the supra. Section 2774 original judgment direct trial court reinstate verdict upon jury, based have would al sue, done on the as forbearance theory leged petition, was a sufficient consideration de In promise, regardless fendant’s above section. of the cases where character, plaintiff has alleged relating the specific to the consideration for siaid facts alone allegations, it must recover such promise, upon indulge would not be entitled to in presumptions, issue, to that trial attention relating even if court’s had been thereto, urged called and the matter court. In other words, presumption can be indulged petition alleges direct language whore forbearance sue was the consideration for the promise aforesaid, and the case was below where tried court’s theory, above shown here instruction tofore out. S. Co., set v. General 223 Baking [Stack W. l. 97 (Mo.) cited; c. and cases ex State rel. Peters v. Reynolds, l. c. S. W. State El (Mo.) 123; ex rel. v. 240;
lison,
Burge
94;
Mo.
v.
l.Mo.
c.
Railroad,
Railroad,
Tetwiler
VII. It is further that plaintiff’s original contended judgment be restored, becausa should defendant did upon the go stand to a hence, that considera- testify and, tion should be presumed, etc. This position Failure to Testify. is untenable two reasons:' (a) Because
Allen, with whom respect dealt A,’’ to “Exhibit at the time of trial, dead and re- spondent competent was not, therefore, witness as the merits of the controversy, (b) Because plaintiff, having failed prima-faeie make case, no presumption can be legally indulged, respect to defendant’s failure
.708 SUPREME COURT OP MISSOURI.
Allen West Comm. Co. testify [Kerstner Tinder such circumstances. Vor Ry. App. weg, l. 130 Mo. Diel v. Co., c. 454.] Ry. App. Judge Co., l. In Diel v. c. Rom very clearly forcefully *15 stated our view of the bauer subject, on this1 follows: law as elementary “It is an rule that, before upon discharge can be called introduce evidence to plaintiff? legal himself, the must some evidence show ’’ part. liability on his carefully phase every We have considered case, and have hesitation reached conclusion without entitled to recover record before us. judgment grant-
The order of the court accordingly below, ing defendant a new affirmed. trial, Mos- ley and White, concur. CG., foregoing opinion
PER of Railey, CURIAM: The adopted hereby opinion C., is of the All court. judges of the concur.