126 Mo. App. 478 | Mo. Ct. App. | 1907
Action for damages resulting from breach of contract. It appears from the allegations of the petition and from the evidence introduced by plaintiff that plaintiff and one Doubet began negotiations for
In the meantime, the holders of the chattel mortgage, becoming impatient, had advertised the property for sale and the agreement between plaintiff and defendant we have last mentioned was made on the day preceding that on which the sale was to occur. The parties separated with the understanding that they were to meet at a certain office in Nevada the next day,
Defendant says that immediately before the sale, he again offered to loan plaintiff the money on the terms of the agreement made the preceding day, but plaintiff contradicts this statement and declares that no such offer of assistance was made. The proceeds of the sale were barely sufficient to discharge the mortgage debt and this action is to recover from defendant in his individual capacity the value of the property above the amount of the encumbrance.
Defendant, in his testimony, admits making the sale of the dairy to plaintiff for the sum of $1,800 and the payment by plaintiff of $812 of the purchase money, but denies that he agreed to lend him the sum of $988 for one year or to make him any loan. His version of the agreement is that plaintiff was, to borrow the money from the bank for six months and that defendant and his brother-in-law would become sureties on the note. He states that when the indebtedness of the Doubet estate to the bank became due, he importuned plaintiff, without success, to close the transaction on the terms agreed in order that the estate might be released from its obligation, but plaintiff refused, on the ground that he expected to borrow the money from a friend and did not accept defendant’s proposal until the day before that on which the property was advertised for sale under the mortgage. That from then on to the very moment of sale, defendant made every effort to induce plaintiff to take the loan, but his efforts were unavailing.
At the close of the evidence, the court refused to give
On behalf of defendant, the following instructions were given: “If the jury believe from the evidence that defendant Schneblin was ready and willing and able to carry out his contract made with plaintiff on March 17, 1905, in the office of D. M. Gibson, and said contract was not performed on account of the fault of Hedden, the verdict should be for the defendant.”
“If the jury believe from the evidence that after the contract of March 17, 1905, in D. M. Gibson’s office, any other or different contract was made between Hod-den and Schneblin in regard to taking up the Doubet note in the First National Bank and that said note was not taken up1 or extended under such new contract by reason of the fault of Hedden, the verdict should be for the defendant.”
The jury returned a verdict for plaintiff in the sum of $800 and, after ineffectually moving for a new trial, defendant brought the case here by appeal.
Three grounds are urged for a reversal of the judgment : First, “that the agreement by the administrator to pay the debt of his intestate was within the fourth section of the statute of frauds and could only be proved by writing.” Second, “that nominal damages only are recoverable for breach of contract to loan money.” Third, that the weight of the evidence so preponderates on the side of defendant that the verdict cannot be regarded otherwise than as the result of passion or prejudice. These propositions will be discussed in the order stated.
The contract between plaintiff and defendant was
Conceding for argument that the agreement of defendant had for its main object the release of the estate from the indebtedness to the bank, still we encounter an insuperable obstacle to the conclusion of defendant that it was an agreement to> answer for the debt of another within the meaning of the statute. Courts in this State and elsewhere repeatedly have declared that the statute applies only to promises made to the creditor and not to those made to the debtor or some person standing in his shoes, such as a purchaser of encumbered property. “An agreement to pay and discharge a debt made wth a debtor or some person interested for him, if founded upon a new and valid consideration is an independent undertaking and does not come within the letter of the statute.” [Green v. Estes, 82 Mo. 337; Howard v. Coshow, 33 Mo. 118; Brown v. Brown, 47 Mo. 130; Flanagan v. Hutchinson, 47 Mo. 237; Besshears v. Rowe, 46 Mo. 501; Winn v. Hillyer, 43 Mo. App. 139; Eastwood v. Kenyon, 11 Ad. and El. 445; Alger v. Scoville, 1 Gray 391; Pipe v. Brown, 7 Cush. 133; Leonard v. Vredenburgh, 8 Johns. 39; Skelton v. Brewster, 8 Johns. 376.] Defendant is driven to say that plaintiff, under the terms of the contract of sale, assumed the relation of the estate to the debt and, if this be true, the promise of defendant was made to the debtor, not to the creditor.
Another reason may be given for denying defendant the use of the statute as a means of escape from liability for the breach of his promise. Plaintiff, in paying the amount of the purchase price in excess of the encum
The adoption of these rules brings us to the question of whether there was any consideration for the promise of defendant. A mere promise to pay an existing debt of another without any new consideration is a nude pact and, therefore, void; and, unless we can find in the agreement of the parties a new consideration, defendant cannot be held liable on account of his breach of a naked promise. The promise was made at the time of the original negotiation between plaintiff and defendant for the sale of the property which the latter held as administrator. It was incorporated into the contract of sale as an essential part thereof; without it, the sale could not have been consummated, and, as it is impossible to disconnect it from that contract, we think the true test to be applied is not whether the promisor himself was to receive a reciprocal benefit, but whether the entire transaction, the contract of sale, of which the promise was an incident, is supported by a consideration. It is conceded that plaintiff agreed to and did give a sufficient consideration for the property and that consideration is the aliment for defendant’s promise. We refer to the opinion of this court in Chenoweth v. Express Co., supra, and to the authorities therein cited, for a more elaborate expression of our views on this subject.
Passing to t’w second proposition advanced by defendant, we cannot agree with his contention that plaintiff’s recovery should have been limited to nominal damages. Adopting plaintiff’s version of the facts, it ap
But the controlling rule to be applied in settling the question of whether a recovery of consequential damages peculiar to the given case should be allowed is to ascertain whether from the terms of the contract considered in the light of its special circumstances known to both contracting parties it reasonably may be said that the special injury was the natural and proximate result of the breach of a contract made under such special circumstances. Whenever a direct causal relation is disclosed between the wrongful act and an injurious result, then such a result must be deemed to have been within the contemplation of the parties at the time they entered into the contract, and the delinquent party
On the last proposition of defendant, we find the verdict is supported by substantial evidence. Indeed, if it were in our province to weigh the evidence, we would approve the verdict. Plaintiff was the victim of defendant’s wrong and should be adequately compensated. The instructions given expound the law fairly and it follows that the judgment must be affirmed.