60 Mo. 249 | Mo. | 1875
delivered the opinion of the court.
This was an action commenced by the plaintiff against the defendant on a promissory note, of which the following is a copy:
*251 “ $50. Maryville, Mo., July 1, 1872.
I promise to pay Charles Lindell fifty dollars ($50) March 1st, 1873, if he, during the time from July 1st, 1872, to March 1st, 1873, will not use intoxicating liquors and beer of any kind.
H. Rokes.”
The cause was tried before a jury, and evidence was adduced showing that plaintiff had not used intoxicating liquor or beer of any kind during the period specified in the note, and there was a verdict and judgment in his favor.
Defendant objected to the introduction of any evidence by the plaintiff, on the ground that the note was illegal for want of mutuality and consideration. The same objections were also made in the shape of instructions ; but they were overruled.
It is true that the plaintiff did not undertake, in direct terms, to do anything when the note was made, but the pre-\ vailing doctrine now is, that if one promise to pay another a sum of money if he will do a particular act, and he does the • act, the contract is not void for want of mutuality, and the promiser is liable, though the promisee did not at the time of the promise engage to do the act; for upon the performance of the condition by the promisee, the contract becomes clothed with a valid consideration, which relates back and renders the promise obligatory. /
Our statute provides that all instruments of writing made\ and signed by any person or his agents, whereby he shall promise to pay to any other or his order, or unto bearer, any sum of money or property therein mentioned, shall import a consideration, and be due and payable as therein specified^ (1 Wagn. Stat., 270, § 6.)
The note imported a consideration, and it was only incumbent on the plaintiff to show that he had complied with its terms. The case of Hempler vs. Schneider (17 Mo., 258) is in point. There Schneider promised to pay Hempler, for Wilhelm Nauman, the sum of two hundred dollars for goods received, in case Nauman did not return to St. Louis within
The note of itself, in the present case, imported a good consideration, and it requires no argument to combat the position that a promise made in consideration that a person shall abstain from the use of intoxicating liquor is illegal as against public policy.
The judgment should be affirmed, and with the concurrence of the other judges it will be so ordered.