Stephens v. Spiers

25 Mo. 386 | Mo. | 1857

Soott, Judge,

delivered the opinion of the court.

There is no doubt of the correctness of the proposition that a compromise of a doubtful right is a valid consideration for a promise. But this case does not stand upon this proposition. George Waters was a party to the note for $1000 and became responsible for it. He testifies that in order to release the defendant he executed a mortgage to the plaintiff, who agreed, in consideration thereof, to discharge him from all liabilities then existing against him. This mortgage was accepted by the plaintiff and was enforced by him. Now if a suppressio veri est suggestio falsi, the plaintiff acted in bad faith in afterwards suing the defendant upon the note for $1000, when, for a valuable consideration, he had previously released him. If the notes sued upon had been executed in a spirit of compromise upon a full disclosure of all the circumstances affecting the liability of the defendant, they would have been binding upon him. The jury however have negatived this state of facts, and, as they were the proper judges of the matter, we can not interfere with their verdict. It does not appear that the defendant, when he executed the notes sued on, was aware of the inducement which led to the giving of the mortgage by Waters ; and the withholding of the knowledge of this fact from him was enough to vitiate the transaction.

After the instructions asked by the plaintiff and given by the court, we do not see with what consistency he can complain of the instructions given at the instance of the defendant. The plaintiff’s instructions expressly put his right of recovery upon the freedom of his conduct from fraud and misrepresentation. He can not then complain that there was no evidence of fraud in the transaction which would warrant the instructions given for the defendant. These instructions placed the plaintiff’s right to recover on the same ground, with specifications and some amplification adapted to the evi-

dence in the cause. Judgment affirmed ;

Judge Ryland concurring ; Judge Leonard absent.