Amonett v. Montague

75 Mo. 43 | Mo. | 1881

Hough, J.

This case is now here oh the appeal of the defendants-. When it was here before on the appeal of the plaintiff', (63 Mo. 201,) it was decided by this court that the plaintiff' was a competent witness, and that. parol testimony was admissible to ascertain what debts were intended to be provided for by the stipulation of the defendant and his ' brothers contained in the contract between them and their father, R. Y. Montague.

At the first trial the defendant was not offered as a witness. When the case was remanded, the defendant was offered as a witness, but .was not permitted to testify.

When this case was first here, the laws of Louisiana affecting the relations of the parties to the contract sued on, were not in evidence or alluded to in argument. • Now, however, they have been properly brought before us, and as the contract was entered into in that state, and with reference to the laws there in force, it must be construed according to those laws. It will be unnecessary to cite the provisions of the civil code offered in evidence. It will be sufficient to refer to the decision of the supreme court of Louisiana in Mitchell v. Cooley, 5 Rob. 243. It is there said: “ When a person stipulates in a sale that his vendee shall pay to Ms vendor a balance of the price yet due, the original vendor, who is thus delegated to receive such amount may, to be sure, be viewed as beiug adjeetus solutionis gratia. Not being a party to the contract, he is not bound by the stipulations; and he may continue to look to his own vendee for payment. On the other hand, the partiés to.the sale may- annul and destroy the agreement, but if the person in whose favor such a stipulation is made, consents to avail himself of it, he thereby makes himself a party to the contract, which cannot afterward be revoked without his assent,-and he can bring suit to recover the amount thus stipulated in his behalf.” The same rule obtains in Ohio, (Stiner v. Dorman, 25 Ohio St. 378,) and is perhaps the correct one, though it was otherwise ruled by this court in Rogers v. Gosnell, 58 Mo. 589. Such being the relations of the parties to this contract under the laws of Louisiana, the plaintiff cannot be heard to object to the competency of the defendant as a witness, under our statute. Fulkerson v. Thornton, 68 Mo. 468.

That portion of the answer which set up a rescission of the contract before the stipulation in favor of the plaintiff was accepted by him, and which also set up a failure of consideration, should not have been stricken out. Brandon v. Hughes, 22 La. Ann. 360; Mitchell v. Cooley, 5 Rob. 243.

Eor the reasons given when this case was here before, we are still of opinion that the plaintiff can maintain the present action without joining Hinds, and we see nothing in the sections of the civil code cited, in conflict with this view. It would be absurd to suppose that the intention of the parties in entering into this contract was, that it might, or should, be discharged by the payment of plaintiff’s debt to Hinds. E. V. Montague and defendant could hardly have supposed that Amonett would ever accept such a provision made for him as that.

There is nothing in the point that the promise of the defendant and his brothers to pay the debt of plaintiff, was-not an obligation in solido. The answer of defendant admits that he was separately bound for the entire amount due plaintiff and Hinds.

The statute of limitations cannot be pleaded in this action to the notes which the defendant promised to pay If the covenant sued on was not barred when the suit was brought, the plaintiff must prevail, so far as'this defense is concerned. This was so decided in the case of the Succession of Charles Ferguson, 17 La. Ann. 255, and this is doubtless the rule everywhere.

The judgment will be reversed and the cause remanded.

All concur.