28 Mo. App. 399 | Mo. Ct. App. | 1888
delivered the opinion of the court.
Plaintiff sues for a balance of $284.74, due on an open account for liquors sold and delivered to John
It appears that, prior to December 30, 1878, Belle-ville had for a length of time been purchasing liquors from the plaintiff on running account, and had become tardy in his payments ; so that the plaintiff refused to credit him any more, without some responsible security for the accruing indebtedness. The plaintiff ’ s testimony tended to prove that thereupon Belleville and the defendant went together to the plaintiff’s place of business, where the defendant “ agreed to be responsible to the amount of four hundred dollars,” for any goods that the plaintiff - might thereafter sell to Belleville. The plaintiff’s bookkeeper thereupon wrote a memorandum of this undertaking at the top of the page containing Belleville’s book account and requested defendant to sign it. The defendant refused to do so, saying that his word was as good as his writing. At that time Belleville owed the plaintiff about three,hundred dollars on old account. Afterwards, he made sundry payments without giving direction as to how they should be credited, and the plaintiff applied them to the old account, so that that account was fully paid up to December 30, 1878, and a small balance was carried to the credit of the indebtedness subsequently accruing. The plaintiff testified that 'he gave the credit to the defendant, and that he would not have sold the goods to Belleville, but for the defendant’s undertaking to be responsible for the payment. He did not intend, however, to demand payment from the defendant, until he should have found it impossible to get the money from Belleville. The defendant, testifying in his own behalf, admitted that he went with Belleville to the plaintiff’s office, but denied in positive terms that he there undertook or promised anything whatsoever, or that any such conversation ever occurred, as was described by the plaintiff and his witnesses.
The court gave for the plaintiff the following instruction :
And, of its own motion, the court gave the following:
“If you find, from the evidence, that defendant, Pohlmann, promised plaintiff to pay for the goods furnished to Belleville, in event Belleville himself should not pay for them, and such was the only promise made by defendant to plaintiff on that subject, then, under the statute of frauds of Missouri, you should find for defendant, as such promise could not create a liability on the part of defendant, unless made in writing signed by defendant or his agent; and in the present case, there is no evidence of such written promise.”
“The memorandum of December 30, 1878, in regard to defendant (as contained in the accounts or exhibits on file in this cause) has no effect as a written promise by defendant in this cause, and does not create any liability on defendant’s part to answer for any debt of Belleville.”
“If you find, from the evidence, that Pohlmann made no promise to pay plaintiff for any goods to be delivered to Belleville by the plaintiff, then you should find for the defendant.”
“The court declares the law to be that, on the evidence before them, defendant can, in no possible
We find nothing in these instructions of which the defendant can justly complain. They carefully discriminate between a primary and direct promise by the defendant, that he would be “responsible” — that is, answerable, liable to pay — for goods sold to Belle-ville, up to the amount of four hundred dollars, and a mere collateral undertaking to make good a credit which was to be given to Belleville. The instructions given on the motion of the court guard the defendant to the fullest extent against any liability as guarantor or surety on an indebtedness about to be contracted by Belleville, in the event that Belleville should fail to pay. They hold the defendant liable, if at all, only on his own original promise to pay for the goods about to be sold to Belleville. A promise to be “responsible” for goods, or their price, delivered to a third person, has been held in several instances to be the equivalent of a direct and original promise to pay, and so not within the statute of frauds. Flanders v. Crolius, 1 Duer, 206; Chase v. Day, 17 Johns. 114; Post v. Geoghegan, 5 Daly, 216. The test question which is universally applied in cases of this sort, “ to whom was the credit given,” appears to have been kept fairly in view in the framing of these instructions. It results that the verdict ought not to be disturbed, if there was substantial testimony in support of the hypotheses which formed a basis for the defendant’s liability as the instructions define it. On the other hand, if, in the light of the instructions, the verdict is utterly irreconcilable with the testimony, taken as a whole, it should not be permitted to stand.
The distinction upon which the case turns at this point may be expressed in a few words: “If a party, agrees to be originally bound, the- contract need not be in writing; but if his agreement is collateral to that of
The plaintiff testified that the defendant said to him: “Now you try to cut Belleville down, and not let Ms aceountxvca. up above that four hundred dollars.” Again, he testifies : “Of course, it was our duty to try first to get the money from Belleville, before looking to Mr. .Pohlmann for it. * * *' Pohlmann said for us to get the money out of Belleville if we could, so he would not have to pay anything.” The plaintiff’s bookkeeper testified : £ £ The defendant, Pohlmann, guaranteed that he would pay the account of the defendant, Belleville, if he did not; provided that the account be no higher than four hundred dollars. * * * Belleville was refused .credit on this day, December 30, 1878, and Pohlmann was brought in to guarantee the account, which he did.” The plaintiff’s partner in business tes
The understanding of the parties at the time of the alleged promise is, by all authority, the true and sufficient test of the character of the undertaking. The persons present at the making of the promise here in question were, the plaintiff, his partner, his bookkeeper, and the defendant. Leaving out the defendant, who denies everything, it is impossible to glance over the testimony of the three other persons, as above quoted, without clearly perceiving what was their common understanding of the matter in hand. This was, that
It thus appears that the evidence, fairly considered and understood, was all one way; and that that way was contrary to the way the jury found. However reluctant we may be, on general principles, to disturb the finding of a jury on a question of fact, yet the duty lies none the less plainly before us, to let no verdict
The defendant asked for eight instructions, all of which were refused. They were to some extent tinctured throughout with irrelevancies and false conclusions, and contained nothing, to which the defendant was really entitled, that was not sufficiently expressed in the instructions given.
With the concurrence of all the judges, the judgment is reversed and the cause remanded.