56 Mo. 272 | Mo. | 1874
delivered the opinion of the court.
This was an action on a verbal guaranty. The petition set forth that plaintiff sold defendant a certain lot of ground in consideration that defendant would pay off and discharge an encumbrance.on the same for $5,000, and pay plaintiff a further sum of $5,000; that defendant paid plaintiff $241 in cash, and for the balance of the $5,000 delivered two certain notes of Barton Able, indorsed by Dan. Able, each for $2,379.50, at sixty and ninety days, which notes defendant then and there guaranteed and promised the plaintiff would be paid at the times they fell due respectively, or, if not paid at maturity, could be collected in full of said Abies by legal process; that plaintiff relied on said assurance and guaranty of the defendant, that the same would be paid by said Abies at maturity, or could be collected from them by process of law; that the notes were not paid; that the Abies, at maturity of said notes, were insolvent, and continue so; that suits were commenced at terms of the court next following maturity, judgments obtained and writs of execution returned unsatisfied, of all which defendant then and there had notice, and the prayer is for judgment for the amount of the notes, interest and costs.
The answer denied all the material averments in the petition, and also pleaded the statute of frauds.
The trial was before the court sitting as a jury, and there was a great deal of conflicting testimony introduced in refer ence to the agreement of the parties, as to how or under what circumstances the notes were received by the plaintiff. At the request of both parties, the court made a special finding of facts. The finding was that the defendant agreed with the plaintiff to assume and pay, as part of the consideration and purchase money, for the lot sold and conveyed to him (and which he did subsequently pay off), an incumbrance of $5,000 existing on said lot; that in addition thereto, and for the balance of said purchase money, defendant agreed to pay plaintiff the sum of $5,000; that the defendant paid to plaintiff, in money, or his check, therefor, the sum of $241,
The statute of frauds, though relied on in the answer and saved in the case, was not much insisted upon in the argument. According to the agreement of the parties at the time the contract was entered into, as found by the court, there was no necessity for reducing it to writing, in order to render it valid. The question whether a verbal contract comes within the statute of frauds or not, depends wholly upon the agreement. If the party agrees to be originally bound, the contract need not be in writing; but if his agreement is collateral to that of the principal contractor, or is that of a guarantor or a surety for another, then the agreement must be in writing. (Glenn vs. Lehnen, 54 Mo. 45; Kratz vs. Stock, 42 Mo., 35; Besshears vs. Rowe, 46 Mo., 501.)
The agreement in the present case was to pay the debt of the defendant himself and not the obligation of the Abies. The substantial and meritorious consideration for defendant’s promise was the deed from the plaintiff, out of which .defendant’s liability accrued. We, therefore think that the statute of frauds does not apply, and that no writing was necessary to support the promise.
It is objected here that the court improperly excluded evidence offered by the defendant to show what was the actual value of the lot. Rut in this ruling there was no error. The parties had agreed upon a certain price, and the question as to whether it was too much or too little was not in the case. The real point was as to whether there was an agreement, as alleged in the petition, and whether there was a guarantee on the part of the defendant that the notes on the Abies should be paid.
To constitute a verbal guaranty or personal undertaking it is not necessary that the word “ guaranty ” should b.e used; but it is sufficient if, in view of all the circumstances attending the transaction, the necessary ingredients to constitute
The only,remaining question to be considered is-whether the plaintiff’s- failure to give notice that the notes were not collected impairs his rights in the present action. In this State the law is well established that where- an offer or proposal is made to .guaranty the payment of future advances to be made to the principal of the guarantor, there should be a distinct notice of acceptance in order that the guarantor may know his liability, and have the means of arranging his relations with his principal, and may take from him security or indemnity. (Central Sav. Bank vs. Shine, 48 Mo., 456; Smith vs. Anthony, 5 Mo., 504; Rankin vs. Childs, 9 Mo., 665.) But there is an obvious distinction between an overture or proposition to guaranty, and a simple contract to be directly liable.The reason for the rule which requires notice is that the guarantor may know distinctly his liability, and be enabled to arrange his relations with the party in whose favor the guaranty is given. If he makes a proposition for an advancement he should be informed of its acceptance, but where he directly agrees and binds himself to be answerable for a specific sum under certain designated circumstances, he knows and has the means within his own hands of determining the extent of his obligations. In Vyze vs. Wakefield, (6 M. and W., 442), where this subject was thoroughly discussed, Lord Abinger sums-up the rule as extracted and deduced from the
I am of the opinion that the judgment should be affirmed;