| Mo. Ct. App. | Sep 23, 1907
This case originated before a justice of the peace and several of the arguments advanced here relate to the proceedings had in that court. However that may be, the case found its way into the circuit court where judgment was given for the plaintiff. and defendant appeals. So much of the proceedings had in the circuit court which are relevant to the arguments advanced for a reversal of its judgment only will be noticed.
The amended statement filed before the justice of the peace and upon which the case was tried, omitting caption, is as follows:
“Plaintiff for an amended statement, says that W. M. Michaels and others did contract the bill with the Great Western Printing Company, amounting to $44.50, the statement of which is hereto attached and made a part of this statement.
“Plaintiff further states that before the delivery of the goods and as a consideration for the delivery of said goods the defendant, in writing, guaranteed the payment of said account.
“Plaintiff further states that said W. M. Michaels and others failed to pay said bill, whereupon it. de
“Whereupon plaintiff prays judgment against the defendant on said guarantee for the sum of forty-four dollars and fifty cents ($44.50).”
To which statement was annexed the following account stated:
“St. Louis. Nov. 18, 1905.
“W. M. Michaels,
World’s Fair Employees,
To Great Western Printing Co. Dr.
To 1000 1 Sheet Posters ....................$12.50
To 200 3 Sheet Posters .................... 12.00 .
To 100 8 Sheet Posters .................... 20.00
$44.50”
Upon a trial, it appeared that one W. M. Michaels, for himself and others, ordered from the plaintiff, a printing establishment, the posters mentioned in the account, the purpose of which was to advertise a ball about to be given. Plaintiff proceeded to print the posters but declined to deliver the same without pay unless the account therefor be guaranteed; whereupon, before delivery of the posters, this defendant; in consideration of the delivery thereof to be made to said Michaels, agreed to and did guarantee the payment of the account and as evidence of the agreement, wrote in pencil across the face of the original account, the words, “Guaranteed. Belcher.” Whereupon the posters were duly delivered, etc. This original account and the defendant’s written indorsement thereon, were filed in the first instance before the justice of the peace as the original cause of action under the provisions of section 3852, Revised Statutes 1899. Summons was issued thereon and defendant appeared thereto. The
2. It is insisted, however, that the statement on which the case was tried is insufficient to support the judgment. There is no merit in this proposition whatever. Our statute provides no formal pleadings shall be required in cases originating before a justice (sec. 3852, R. S. 1899), and the courts have adjudged time and time again that if the statement filed apprises the defendant of the nature of the cause for which he is sued and is sufficiently definite to bar another action for the same subject-matter, it will be sufficient. [Iba v. Railroad, 45 Mo. 469" court="Mo." date_filed="1870-02-15" href="https://app.midpage.ai/document/iba-v-hannibal--st-joseph-railroad-8002822?utm_source=webapp" opinion_id="8002822">45 Mo. 469.]
3. The suit being on defendant’s undertaking of guaranty, it is of course a proceeding where one person is sought to be held for the debt or default of another, and therefore, falls within the provisions of our Statute of Frauds (sec. 4318, R. S. 1899). The argument is advanced on this proposition that the written memorandum of guaranty is indefinite and insufficient with respect to such matters under that statute. Now the memorandum referred to is certainly not so indefinite as to be nugatory under the rule mentioned. It is as follows:
“TE. M. Michaels, World’s Fair Employees,
“Geo. Belcher.
To Great Western Printing Co., 315 Elm St.
To 1000 1 Sheet Posters ....................$12.50
To 200 3 Sheet Posters .................... 12.11
To 100 8 Sheet Posters .................... 20.00
$44.50”
“Guaranteed, Belcher.”
It clearly shows all the elements essential to a sufficient memorandum under the statute. It shows, first, the original parties; the debtor, W. M. Michaels; the creditor, the plaintiff, Great Western Printing Company; and the defendant, Belcher, as guarantor for the debt of Michaels. It shows the date of the items of account to be November 18, 1905, and the several items, with a separate charge for each, together with the sum total thereof. Now on this itemized account, which, in the absence of terms of credit thereon, signified the indebtedness on the part of Michaels to the plaintiff, payable on delivery of the goods, the defendant indorsed in his own hand, the word “Guaranteed” and signed his name, “Belcher” across the face thereof. It is true he did not sign his first or given name. His undertalcing is not void for this, however. It would be sufficient if his initials only were affixed. [Browne on Statute of Frauds (5 Ed.), sec. 362.] It is suggested, however, that it is insufficient for the reason no time is provided for the payment. This cannot be, for it is well settled that if no terms of credit appear, the presumption is the agreement was to pay cash on delivery of the posters, and the memorandum may be entirely sufficient in view of this presumption of law, even though silent in this respect. [Browne on Statute of Frauds (5 Ed.), .sec. 382.] Next, it is argued there appears no sufficient consideration on the face of the memorandum.
4. The evidence shows no effort was made to collect the account from Michaels, the principal, and for
The case was well tried and the judgment will be affirmed. It is so ordered.