Price v. Chicago, Milwaukee & St. Paul Railroad

40 Mo. App. 189 | Mo. Ct. App. | 1890

Ellison, J.

Plaintiff sued defendant on an account for goods sold and delivered. He recovered below and defendant appealed. It appears that plaintiff was a grocery merchant, and' that one Gibbs was a boardinghouse keeper, who boarded section hands in the employ of defendant, and that one Kelly was section foreman. It was “admitted by defendant that section foreman Kelly had authority from defendant to make necessary arrangements and contracts with merchants, on defendant’s account, for provisions for the men working under said foreman’s control on defendant’s road.” Plaintiff furnished goods to Gibbs and received one payment through a check from defendant sent to plaintiff, and which included the amount of both plaintiff’s and Gibbs’ account up to the date of payment, both the accounts having been made out and sent to defendant in plaintiff’s name. This action seeks to charge defendant on an original promise to pay for the goods. The statements of the agreement containing the promise as testified to by plaintiff are the following :

R. E. Price: “lam plaintiff. I was in business at Mosby at the time this account was made. Defendant at that time had a section foreman named Tom KeBy.- One Gibbs had charge of a boarding house, and came in to buy goods on credit. I told him I had had trouble enough with other men, and, unless he would get Kelly and bring him in and agree to have the bills made out in my name, I could not let him have anything. I told Gibbs that he could not get any goods unless he made out his boarding-house account in my name and sent it in that way. He' was to make out his bill in my name and send it to the company, and I was to take out what Gibbs owed me and pay the balance to Gibbs. When the arrangement was entered into, Gibbs called in my store about the time he bought out Booth, and I said I would not let him have anything before he made the kind of arrangement I referred to. That was before he bought any goods. That arrangement was that Gibbs’ boarding-house account should be made out in my name and sent in to the company, and that the check should be made payable to me, and out of that I would pay my grocery account and then pay the balance to Gibbs. There was nothing in writing about it. This was the arrangement made between me, the section foreman and Gibbs.” “The arrangement between me, Kelly and Gibbs was this : I refused to sell Gibbs goods, because I didn’t think him responsible, and I wanted security ; I was not going to sell to Gibbs alone. The arrangement was that my grocery bills were to be made out, then Gibbs’ boarding-house account was to be made out in my name and sent to the company, and the check for it returned to me; then I would pay my grocery account out of the check and give the balance to Gibbs. The first month that was done, I took, my pay and paid the balance to Gibbs.”

Neither of these statements show a promise by defendant to pay for the goods furnished Gibbs, The agreement was that plaintiff and Gibbs’ accounts were to be made out in plaintiff’s name and sent in to defendant, and that then defendant would send a check for the amount to plaintiff that he might take out the amount of his account and turn over the balance to Gibbs. The evident meaning and understanding of the arrangement was, not that defendant was making an original promise to pay for goods in whatever amount Gibbs might purchase ; but merely a promise to put plaintiff in a position where he could with certainty collect or secure his debt'against Gibbs. In other words, defendant was giving to plaintiff the security that he, himself, states he wanted. It is true that plaintiff, in the course of his testimony, says that he “looked to the company for the pay,” and that he “refused to let Gibbs buy goods on his own credit.” Yet this does not vary the effect or scope of the defendant’s explicit agreement to so place the money that it would secure plaintiff’s claim against Gibbs. If defendant has violated its agreement, it does not follow that it can be held in an action on an original promise to pay for the goods.

In order to hold one for the price of goods delivered to another, in the absence of a writing, it is not only necessary to show a promise on his part, but it is requisite to show that the credit was given solely to the party making the promise. The relation of suretyship should not exist. And if the party receiving the goods, or for whose benefit the promise is made be himself liable at all (except it be a joint promise) the case falls within the statute of frauds. In other words, the person for whose benefit the promise is made must not be credited, and must not be regarded by the plaintiff as a debtor. His position must be such that he could not be held liable were an action brought against him for the debt. Browne Stat. Frauds, 197; Swift v. Pierce, 13 Allen, 136; Bugbee v. Kendricken, 130 Mass. 437; Walker v. Richards, 39 N. H. 259; Rottman v. Fix, 25 Mo. App. 571.

Applying this statement of the law to the facts in evidence as stated by plaintiff, we find that plaintiff certainly regarded Gibbs as his debtor. He sought him .out, not without some difficulty; he called on the sheriff for assistance ; he tried to get Gibbs to pay him and finally did collect ninety dollars of him which he applied on the account, stating that he would hold the defendant for the balance. In addition to this, the account he first opened on his books was against Gibbs, though he afterwards wrote defendant’s name above that of Gibbs. While we will not say that this action on plaintiff’s part is conclusive that he extended a part of the credit to Gibbs and that he looked upon him as liable for the account, it is at least very persuasive evidence that such was the case and that he did not look upon defendant’s agreement as an original promise to pay for the goods. We are satisfied that plaintiff has no case upon the cause of action sued on, and it is well understood he can recover upon no other than that upon which he declares. Sumner v. Rogers, 90 Mo. 324; Carson v. Cummings, 69 Mo. 325.

We will, therefore, reverse the judgment.

The other judges concur.