64 Mo. 449 | Mo. | 1877
delivered the opinion of the court.
The plaintiff sued defendant on a promissory note, executed by defendant on the 3d day of May, 1872, for §520, payable to
There was a verdict and judgment for the plaintiff from which defendant has appealed to this court.
The answer denies that the note was ever assigned and delivered to plaintiff, but alleges that plaintiff, by fraud, obtained possession of the same from said Wells H. Blodgett, with whom it had been left by defendant to be delivered to plaintiff when one James Robie should have executed a deed to defendant for his undivided half of a lot of ground in the town of Warrens-burg.
The issue made as to the delivery of the note was found against defendant, and as no complaint is made of declarations of law on that subjeet, the finding of the court will not be disturbed, and we shall assume, in the consideration of the other questions arising in the case, that the note in question was, at the date of its execution, delivered to plaintiff.
The facts — about which there is no controversy — are, that defendant and one James Robie were partners in the drug business, at Warrensburg, Mo., and on the 26th day of October, 1871, entered into a written agreement for the dissolution of their co-partnership and settlement of its affairs, and also for the dissolution and settlement of another co-partnership for the manufacture of “Missouri Baking Powders,” composed of Robie and defendant and one Simmons, who was also a party to said agreement; but inasmuch as the stipulations in regard to this latter co-partnership have no bearing upon this case, they will receive no further notice. In that agreement it was stipulated, between said Robie and defendant, that Robie should sell and Blodgett buy the interest of the former in the lot before mentioned, at a price to be fixed by disinterested parties to be selected by them. They owned said lot jointly.
On the 6th day of December, 1876, Robie and Blodgett entered into another written agreement which, reciting the dissolution of said firm, and the existence of a mortgage on the lot, executed by said Robie to Johnson county, on the 12th day of De
Defendant, in his answer, relies upon the above facts to show that there was no consideration for the note, or that the consideration has failed, and contends that before plaintiff can recover against him on the note, he is bound to deliver to defendant a deed from Robie for the lot in question.
The undertakings of vendor and vendee are ordinarily dependent, and to entitle the vendor to recover the purchase money he must aver, in his petition, a performance or an offer to perform on his part, and sustain it by proof.
Whether the doctrines which prevail on this subject, as between vendor and vendee, are applicable to the case at bar, we will not determine, but it might well be doubted, as it is now settled in this State and elsewhere, that a promise made to one for a valuable consideration, moving from him to another, who agrees to pay a sum of money to a third person, will support an action by the latter. (Rogers vs. Gosnell, 58 Mo. 589; Meyer vs. Louck, 44 Mo. 328; Rogers & Peak vs. Gosnell, 51 Mo. 466; Lawrence vs. Fox, 20 N. Y. 268.)
But assuming that those doctrines are equally applicable to one standing in the relation to the vendor or vendee occupied by the plaintiff, what was the intention of the parties in regard to the dependence of the obligation of the vendor to convey th^ lot and that of the vendee to pay the debts which were a lien upon the land ?
If the vendor had conveyed his interest to the vendee, the latter would have held the land subject to the debts he had promised to pay, and it was perfectly understood by both parties that the vendor could not make a good title, and the very incumbrances which hindered him from making such a title, the vendee agreed to pay off and discharge. As the conveyance by the vendor would not have invested the purchaser with a clear'title, it was evidently the intention of the parties that the mortgage debts, which the purchaser had agreed to pay, and which exceeded, by several hundred dollars, the price of the lot, should first be satisfied ; for unless that were done the vendor could not make the vendee a title. Whose fault was it .that the vendor could not make a title ? The lot was advertised and sold under the mortgage to Johnson county, given to secure one of the debts which the defendant agreed to pay, and he stood by and permitted it to
The appellant complains of the declaration of law, given by the court at the instance of plaintiff, that by the agreement between Robie and defendant, the obligation of defendant was to pay off the mortgage debts immediately. It does not appear from the evidence whether those debts were then due or not.
A fair interpretation of the agreement is, that defendant bound himself to pay those debts according to the terms of the notes and mortgages. If then due, defendant’s obligation was to pay them immediately ; if not due, then at their maturity. As the evidence on that point is not preserved, we cannot say whether the instruction was erroneous or not. We cannot presume that the instruction was wrong, but, on the contrary, must suppose that it is warranted by the evidence. Conceding that it was erroneous, howTever, it could not possibly have prejudiced defendant, because he fixed a time for the payment of plaintiff’s debt by the note in suit, which was certainly due when this action was commenced.
The judgment is affirmed,