Snyder v. Gericke

101 Mo. App. 647 | Mo. Ct. App. | 1903

BLAND, P. J.

The suit was commenced in a justice’s court on the following promissory note:

“ $18.50. Miller, Mo., June 2, 1898.

‘ ‘ Three months after date I promise to pay to the order of S. W. Bishop, eighteen dollars and fifty one-hundredths dollars. For value received, negotiable and payable without defalcation or discount and with interest from date at the rate of eight per cent per an-num, and if .the interest be not paid annually to become as principal and. bear the same rate of interest.

‘ ‘ Samuel Gekicke.

“Due Sept. 2.

“Indorsed: G. "W. Bishop.”

Plaintiff recovered judgment in the justice’s court from which defendant appealed.

After the cause reached the circuit court, defendant filed the following answer:

“Comes now the defendant and for answer in his behalf, admits that he signed the note sued on, but says that at the time he did so he was an infant, under the age of twenty-one years.

“Further answering defendant says that after said note was signed by defendant, the plaintiff, for a consideration, released the defendant from any liability thereon, and agreed to look alone for payment to one Hamp Cherry, who was indebted to defendant in a sum sufficient to pay the same.

“Wherefore defendant asks to be discharged with costs. ’ ’

No reply was filed to the answer.

On a trial de novo in the circuit court, the issues were submitted to the court. Plaintiff read the note in evidence and proved that Bishop, the payee, had indorsed and delivered the note to him for value and before maturity.

Defendant proved that he was born June 18, 1879, and that the note was given for a buggy, which he had disposed of before suit and before he attained his majority. He also offered evidence tending to prove that one Cherry owed him about $20 for labor when plaintiff acquired the note; that after plaintiff acquired the note he agreed with defendant to look to Cherry for payment of the notes, and that Cherry agreed to pay what he owed plaintiff on the note.

Plaintiff’s evidence is that he did not agree to look to Cherry for payment, but only agreed to accept any payment that Cherry would make and credit the note therewith.

Cherry did not pay anything until after the cause reached the circuit court by appeal. He then offered to pay defendant $19.90, claiming that was all he owed him. Both defendant and Cherry testified that when Cherry made this offer, the defendant told him that he did not owe him anything and that he could pay it to Snyder. Cherry testified that defendant had told him prior to this to pay what he owed to Snyder.

No instructions were given for plaintiff.

The court gave the following for defendant:

“1. The court declares the law to be .that if the court finds from the evidence, that at the time the defendant executed the note sued on, he was an infant under the age of twenty-one years, and that the same was not given for necessaries purchased by such infant, then the finding and judgment must be for the defendant, unless such defendant has ratified such note and debt represented thereby, as provided by law, since be became of age.”

The following instruction, asked by defendant, was refused:

“2. The court declares the law to be even though the court finds from the evidence that the defendant told the witness, Cherry, this fall, and after this suit was brought, that he did not owe him anything on account of the labor he had performed for the witness in the winter of 1897-8, that it “was going to plaintiff Snyder on the note sued on, and he wanted him to pay it to Snyder under the agreement entered into prior to the time defendant became of age, and thereafter to-wit, on the Monday preceding this trial, Cherry paid to Snyder the sum of $19.90, on the note, for defendant, such facts would not constitute a ratification of the note and debt represented thereby, in law, and plaintiff is not entitled to recover by reason thereof. ’ ’

The court found the issues for plaintiff and rendered judgment in his favor for $4.11. Defendant appealed.

1. It is conceded that the defendant was a minor when he made the note. The court, therefore, must have found against his contention that plaintiff had agreed to look to Cherry for payment and that the payment made by Cherry was, in the circumstances, equivalent to payment by the defendant, made after he became of age and was ratification of the contract, within the meaning of section 3433, Revised Statutes 1899. There is some evidence in the record in support of this view and the judgment should be affirmed, unless the court erred in refusing the second instruction asked by defendant. To ratify the non-enforeible contract of an infant by payment after he becomes of age, within the meaning of section 3433, supra, the payment must be a voluntary one made on a debt, which the payor at the time recognizes and acknowledges as a subsisting debt against him.

The undisputed evidence is that defendant told Cherry that he did not owe him anything, but to pay Snyder. If this direction was given in the honest belief that Snyder had theretofore agreed to look to Cherry alone for payment of the note, then the payment was not such a payment as would amount to a ratification of the contract,, and we think the refused instruction asked by defendant (modified to conform to the views herein expressed) should be given on a retrial of the cause.

2. The third refused instruction asked by defendant is not the law. A non-enforcible contract may be ratified as well after as before suit.

3. It is contended by the defendant that to entitle plaintiff to recover on the theory of ratification, he should have pleaded the ratification. This would be true if the cause had originated in the circuit court. Currier v. Lowe, 32 Mo. 203; Capital Bank v. Armstrong, 62 Mo. 59; Webb v. Allington & Anderson, 27 Mo. App. 659. But the suit originated in a justice’s court, where no formal pleadings are required, besides the case was tried by' both parties on the theory that defendant had ratified the contract by payment after he had attained his majority. The appeal must be disposed of on the same theory that the parties tried it on in the circuit court.

For error in refusing defendant’s second instruction, the judgment is reversed and the cause remanded.

Beyburn and Goode, JJ., concur.