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