Van Meter v. Poole

119 Mo. App. 296 | Mo. Ct. App. | 1906

BROADDUS, P. J.

The plaintiff appeals from the action of the court sustaining a demurrer to his petition because it did not state a cause of action. The petition omitting the caption is as follows:

“Plaintiff for cause of action herein states on the 6th day of November, 1895, and long prior thereto; one George W. Grigsby was the owner of the legal title to the folloAving described real estate situated in Barton county, Missouri, to-Avit: Thirty-three and one-third (33 1-3) feet off the south side of lot three (3), and thirty-three and one-third (331-3) feet off the north side of lot four (4), all in block eighteen (18), Parry’s Addition to Lamar, Missouri, also lot two (2), block two (2), Wills’ Third Addition to Lamar.”

That on or about the 6th day of November, 1895, said Grigsby, being the owner of the real estate aforesaid, procured a loan of six hundred and twenty-five dollars of school money from the county court of Barton county, Missouri, and for the purpose of securing the payment of the money so loaned, with lawful interest thereon, said Grigsby executed his certain bond for the sum of $625, dated November 6, 1895, due and payable November 6, 1896, and bearing interest at the rate of 8 per cent per annum from date. That at said Grigsby’s request and in consideration of said money being loaned to said Grigsby, plaintiff signed said bond as one of the sureties and thereby became liable for the payment of the debt and interest in said bond expressed. That at the date of the execution of the above-described bond, the said Grigsby also executed a school fund mortgage whereby the real estate hereinbefore described was intended to be conveyed by said Grigsby to further secure the payment of the debt and interest evidenced by said bond; said mortgage being the same as appears of record in the recorder’s office in and for Barton county, Missouri, in Book 74, at page 350.

That afterwards, to-wit, about the 13th day of August, 1896, the said George W. Grigsby, for the agreed consideration of $1,000, conveyed by a good and sufficient deed the above-described real estate to the defendant, A. G. Poole. That at the time of such conveyance, the defendant, A. O. Poole, deducted the amount due on the above described school fund bond and mortgage from the agreed consideration of $1,000, and of the consideration of said conveyance to defendant the amount of said mortgage debt was not paid to said Grigsby, but defendant then and there in consideration of said conveyance assumed and agreed to pay and discharge the said school fund debt. That after procuring said conveyance, the defendant, A. C. Poole, discovered that said school fund mortgage, by mistake made in the writing of the description of said real estate, did not convey, as was intended by said mortgage to be conveyed, all of said real estate as described aforesaid, and thereafter the defendant, A. C. Poole, failed, neglected and refused to pay any part of the principal or interest on said school loan, but retained possession of said property; occupied the same and enjoined the rents and profits thereof. That afterwards by the judgment of the circuit court of Barton county in an action wherein the said Grigsby, A. Van Meter (this plaintiff here) and other sureties on said bond were plaintiffs and said A. O. Poole (the defendant here) and Barton county were defendants, said circuit court having full jurisdiction in the premises, said school fund mortgage was reformed, so as to conform to the intention of the parties thereto at the time of its execution, to-wit, so as to describe as conveyed therein and thereby all of the above-described real estate.

That the said George W. Grigsby also failed to pay said school fund debt and has long been insolvent and a non-resident of the State of Missouri. Plaintiff further states that the county of Barton, by reason of the default in paying the principal and interest on said school loan duly foreclosed under the provisions of said school fund mortgage, and sold all the above-named real estate. That after applying the proceeds of such sale toward the discharge of said debt, there remained justly due and unpaid to Barton county for the use of the school fund, the sum of $625 which said sum this plaintiff was, as surety as aforesaid, on the 6th day of October, 1902, compelled to pay. • That the whole amount paid by this plaintiff as such surety since defendant purchased said property is the sum of $897.45. That by reason of the premises plaintiff became and is entitled to have and recover from the defendant the sum of $897.45, the amount paid out by plaintiff as surety on said bond, as aforesaid, together with interest thereon at the rate of eight per cent from October 6, 1902. For all which plaintiff here prays judgment.”

The grounds set out in the demurrer are:

First, that the petition does not state facts sufficient to sustain a cause of action.

Second, that if any cause of action ever existed in favor of plaintiff against the defendant, it accrued more than five years ago, and is now barred by the Statute of Limitations, as appears upon the face of the pettion. The petition was filed March 26, 1904.

The demurrer should have been overruled. It is, we think, a well-established principle in this State that, a contract between two parties may be enforced by a third party, when entered into for his benefit, although he be not named in such contract. [City of St. Louis to use v. Von Phul, 138 Mo. 561; Rogers v. Gosnell, 58 Mo. 589; State ex rel. City of St. Louis v. Laclede Gaslight Co., 102 Mo. 472; Ellis v. Harrison, 104 Mo. 270; Summers v. Wabash Railroad, 114 Mo. App. 452; Devers v. Howard, 144 Mo. 671.] The contract set out in the petition Avas that defendant agreed to assume and pay the debt of plaintiff’s principal for whom he was the security; therefore the agreement was to pay the plaintiff’s. debt and as such it was for his benefit.

The defendant in her argument assumes that the contract set out in the petition was not in writing and that such being the case the plaintiff’s cause of action is barred by the five-year Statute of Limitations. But this assumption is contrary to law. Where it is not stated in the petition that the contract was oral, but is declared on without stating whether it is in writing or not, the same is presumed to be in Avriting. [Sharkey v. McDermott, 91 Mo. 647.] It follows, therefore, the contract is presumed to be in writing, the ten-year Statute of Limitation would apply and plaintiff’s action not being barred under the statute, the contention of defendant in that respect is overruled.. Cause reversed and remanded with directions to overrule the demurrer.

All concur.