Waggoner v. Davidson, 189 Mo. App. 345

189 Mo. App. 345 | Mo. Ct. App. | 1915

STURGIS, J.

The defendant’s minor son made his first business venture by forming a partnership (?) with one Garrison and engaging in the restaurant business. The plaintiff, a groceryman, sold goods to this firm on credit and in this way the debt now sued for had its origin. Presently the firm became insolvent and plaintiff was about to sue the firm by attachment and thereby take steps to seize and subject what prop-erty the firm had to the payment of his debt. The theory on which plaintiff seeks to hold defendant liable is that on his informing defendant of his intention to bring suit by attachment against her son and his partner, she induced him not to do so for the time being by promising verbally to see him later and pay the debt. Plaintiff says that in consequence of this promise he did not bring suit until the next day and in the meantime another creditor had attached. Nothing is shown as to the value of the goods which plaintiff says he might have attached and refrained from so doing, nor what was done under the other attachment. Later plaintiff brought this suit in a justice court against the mother and son on a statement filed as for goods sold to them. After the evidence was all in the plaintiff dismissed the case in the circuit court as to the son and in open court released him from all liability for the debt sued on.

The evidence clearly shows that the defendant had no interest in the restaurant business in which her son was an alleged partner and she in no way contracted this debt or induced plaintiff to sell goods to such firm for either partner, nor did she receive any benefit therefrom. She was a complete stranger to the whole transaction other than the alleged promise to pay the debt which had been contracted sometime prior thereto. The defendant, however, positively denied making any such promise.

The defendant raised, by an instruction refused, and now insists on the Statute of Frauds as being a complete defense to this action. This being an action begun before a justice of the peace, where pleadings are not required, no question can be made but that the defendant could raise this defense without pleading it. We are not intimating, however, that an instruction is not sufficient to raise the point in most cases. [Schmidt v. Rozier, 121 Mo. App. 306, 98 S. W. 791.]

As before stated, there is a flat contradiction between plaintiff and defendant, the only parties who knew anything about it, as to whether defendant did or did not make the promise sued on to answer personally for a debt in no way her own but clearly that of another. The very purpose of the Statute of Frauds is to prevent just such controversies as this and to prevent frauds and perjury by requiring all such promises to be in writing in order to be binding on the promisor. Unless, therefore, this case presents some exception to the general rule plaintiff cannot recover.

Certainly the defendant is not an original promisor as to this debt, as suggested by plaintiff in citing Steele v. Ancient Order of Pyramids, 125 Mo. App. 680, 103 S. W. 108. The goods were sold and consumed before defendant was ever consulted as to the debt thus contracted. She had nothing to do with creating it. Where one person induces another to sell goods to a third person on the promise of such first person to pay therefor, then the seller may treat such first person as an original promisor to whom credit was given in selling the goods (Newton Grain Co. v. Pierce, 106 Mo. App. 200, 80 S. W. 268; Chick v. Prey Coal Co., 78 Mo. App. 234; Price v. Railroad, 40 Mo. App. 189; 20 Cyc. 180), but that is far from this case.

Nor can defendant’s liability be predicated on the ground of a consideration having passed directly to defendant as promisor. For sentimental reasons or from the very highest moral motives the defendant may have been moved to pay her son’s debt but the law does not enforce such purely moral obligations. If defendant made the promise in question it was on such ground alone and no pecuniary benefit — no legal consideration —came to her as a consideration for the promise. It is true that there was a consideration for the promise in the legal sense of that term as such consideration may be either a benefit going to the promisor or a detriment to the promisee. Here there was no benefit to the promisor but there was a detriment to the promisee in that he refrained from suing by attachment, by which means he might have collected all or some of his debt. His foregoing the intended suit, regardless of its result, may be taken as the relinquishment of such a valuable right as to constitute a valid consideration. But while the detriment or loss to the promisee is a good consideration, it is not a sufficient consideration to take a verbal promise to answer for the debt of another out of the Statute of Frauds. [Musick v. Musick, 7 Mo. 495.] Thus, in Nunn v. Carroll, 83 Mo. App. 135, 139, the fact that a married woman persuaded a creditor out of taking a mortgage to secure the debt of her husband to him on the verbal promise that she would stand good for the debt out of her own property was held not to take such promise out of the statute. In Gansey v. Orr, 173 Mo. 532, 546, 73 S. W. 477, it was held that where defendant induced plaintiff to invest her money in the stock of a corporation on a verbal promise made by defendant to make good any loss she might suffer, this was not sufficient to take the promise out of the Statute of Frauds. This question has received careful consideration in the recent case of Martin v. Harrington, 174 Mo. App. 707, 161 S. W. 275, where many cases are cited, and the rule is there announced that in order to take a verbal promise to pay the debt of another out of the Statute of Frauds the consideration for the promise must be of some benefit to the promisor and not a mere detriment to the promisee. “"Where the object of the promise is to obtain the release of the person or property of the debtor, or other forbearance or benefit to him, it is within the statute.” [Nelson v. Boynton (3 Met.), 44 Mass. 396, 37 Am. Dec. 148; 20 Cyc. 188; 1 Reed on Statute of Frauds, see. 38.]

Nor does this case fall within the exception that where the verbal promise relied on has for its object and results in the absolute extinguishment of the original debt, then such promise becomes an original or substituted promise and is not within the statute. [Martin v. Harrington, 174 Mo. App. 707, 710, 161 S. W. 275.] In such cases, the original debt being extinguished, the promise is not to answer for the debt of another, for none such then exists, but such promise creates a new debt of the promisor to the promisee, the consideration for which is the detriment to the promisee in relinquishing the old debt. But in such cases the old debt must be extinguished and the original debt discharged at the time and as a consideration for the new promise. [20 Cyc. 186.] Any subsequent discharge of the original debtor after suit is brought against him along with the promisor, as was attempted in this case, cannot have such retroactive effect for obvious reasons. The promise when made being invalid because not in writing as required by the statute, it cannot be infused with life by any such subsequent and voluntary forgiveness of the original debt.

As the verbal promise on which this action is based is void under the Statute of Frauds, the plaintiff cannot recover thereon and no other questions in the case need be considered. The judgment of the trial court is, therefore, reversed.

Robertson, P. J., andsFarrington, J., concur.