24 Mo. 134 | Mo. | 1856
delivered the opinion of the court.
The main question is as to the proper construction of the articles of agreement upon which the first and second counts of the last amended petition were founded. It is supposed, on one side, that this instrument created a personal obligation against Morrison, not only to grant a lease on the pork-house to Clarkson when it should be erected, but also to cause it to be erected as prescribed in the articles; while, on the other side, it is insisted that the obligation to ereet the building was exclusively upon Collins ; to enable him to do which, money was ■ to be advanced to him by both Morrison and Clarkson ; and that the only obligation upon Morrison was to make the lease when the building should be erected, and to accept Clarkson’s advance of a thousand dollars to Collins as a payment of the' first half year’s rent.
To enable us to put a proper construction upon this agreement, we ought to be made acquainted with the circumstances that surrounded the parties at the time it was entered into ; but-the only light we have on the subject is what is disclosed by the instrument itself. Judging from the written articles, we should infer that Collins was the real owner of the leasehold interest upon which the pork-house was to be erected, and that he was indebted to Morrison, who held this and other property belonging to Collins in trust to secure that indebtedness ; that these two parties — Collins and Morrison — were desirous of
It only remains to consider the propriety of striking out the third and fourth counts, filed under a general leave to amend, on the ground that they brought into the record new causes of action not embraced in the original petition. In this particular we think the court erred. The original and first amended petitions are very inartificially drawn, but enough is shown to warrant the filing of the third and fourth counts. The third count is upon an oral promise of Morrison for the completion of the building, and the fourth count for money expended by Clark-son for Morrison. Both the original and the first amended petitions allege an oral promise on the part of Morrison to complete the building, and also contain an allegation of the expenditure of money upon the building by the plaintiff with the assent of Morrison. These matters, as before suggested, are very imperfectly stated, but enough is stated, in our opinion, to authorize the amendments made in the third and fourth counts. We do not know that this will avail the plaintiff any thing under ' the opinion now expressed in reference to the construction of the written agreement, but if the plaintiff have a right of recovery independent of the written contract, as is alleged in these counts, we should be unwilling to deny him redress on account of the imperfect manner in which his cause of action was originally stated.
Let the judgment be reversed and the cause remanded.