Rippey v. Friede, 26 Mo. 523

Rippey v. Friede

26 Mo. 523 | Mo. | 1858

Richardson, Judge,

delivered the opinion of the court.

The defendant was liable for the debt if, with money in his hands due to Jeter, he promised the plaintiff to pay the account in consideration that the latter would not encumber *525liis property with a lien, which would have secured the debt, and that the plaintiff, relying on his promise, gave up the security which the law allowed him to take. The naked promise to pay the debt, without any consideration of benefit to the defendant or of harm to the plaintiff, would be insufficient to support an action. But the plaintiff’s object in presenting the account, and the fact that the defendant promised without any reservation to pay it, on which the plaintiff acted and omitted to file a lien which he would have done if he had nbt been misled, are distinctly proved; and whether the defendant made the promise in consideration that the plaintiff would not file a lien, was a question of fact for the jury, which they might, under the circumstances, if they had seen fit, have inferred.

The instruction therefore was erroneous, for “ if there is the least particle of evidence, whether direct or merely inferential, upon which a verdict can be founded, such instructions are improper.” (18 Mo. 170.)

The other judges concurring, the judgment will be reversed and the cause remanded.