6 Mo. App. 370 | Mo. Ct. App. | 1878
delivered the opinion of the court.
The petition of plaintiff alleged that in March, 1877, and for a long time prior thereto, and after that date, defendant was president of a banking corporation called the Bank of St. Louis, doing a general banking business in St. Louis ; that on July 12,. 1877, plaintiff had $4,200 on deposit in said bank, which had been received and deposited by him as receiver in a cause then pending; that “on July 14, 1877, having fears as to the solvency of said bank and the ■safety of the moneys so deposited, he went to said bank for the purpose of withdrawing said funds from the same, as he had a lawful right to do, and as he could and would have done but that said defendant, who was then the president •of said bank, and otherwise largely interested in the same as director, stockholder, and depositor, induced plaintiff not to withdraw the same, and promised and agreed with him
“ Plaintiff states that he knew or believed that defendant was solvent, and that he was abundantly able to pay plaintiff said money should said bank close up ; and relying on the promise of said defendant as aforesaid, and to accommodate him and comply with his request, he did not withdraw said funds from said bank as he had intended to do, and but for said promise should have done, but permitted the same to remain in said bank in consequence of thfe promises.
“ Plaintiff further states that thereafter, on the 16th day of July, a. e. 1877, said bank did close up, and has ever since remained closed; that on or about the 20th day of July, a. e. 1877, plaintiff demanded the amount of said deposits from defendant, who then and there promised to pay the same, but failed, and has ever since failed to pay the same to plaintiff.
"Plaintiff states that he has received on account of said deposit from said bank the sum of $2,072.75, and no more ; that he has been compelled to and has used his own funds to make good said deposit, and is now discharged as receiver, and said funds and moneys now belong to him ; that defendant is therefore indebted to plaintiff in the sum of $2,072.75, with interest from July 20,1877; for which, with interest, he asks judgment.”
The answer of defendant was a general denial. He further answered that the promise set out is within the Statute of Frauds, and that it was not in writing. Plaintiff demurred to the new matter; the demurrer was overruled, and final judgment was entered for defendant, from which plaintiff appeals.
The'promise in this case was to pay the debt of another, that existed when the promise was made, and continued to exist after the promise. The statute says that such a prom
The question is not at all whether there was a considera
The question as to what oral promises are now within the ■statute has been complicated by a vast number of decisions, which cannot all be reconciled. It-has been discussed in this country again and again, by men who have brought to its consideration every quality which can dignify and adorn the bench. The opinion of Chief Justice Shaw, in Nelson v. Boynton, 3 Metc. 396; of Judge Comstock, in Mallory v. Gillett, 21 N. Y. 412; of Judge Sill, in Kingsley v. Balcombe, 4 Barb. 132; of Judge Gray, in Furbish v. Goodnow, 98 Mass. 297; of Chief Justice Poland, in Fullam v. Adams, 37 Vt. 391, together with the essay of Judge Redfield, appended to that opinion, in 4 Am. L. Reg. (n. s.) 473, leave little to be desired by one who wishes to see what has been done to reduce to system the cases on this section of the Statute of Frauds, and to draw from them a rule that may be a guide to future decisions. In some reported cases, the question as to whether or not the oral argument is within the statute is disposed of by saying that the promise is collateral or original, as the case may be, without stating the grounds upon which this conclusion is based ; though the question in the case seems to be, what is & collateral and what an original contract. Every contract is original in a certain sense.
A stringent rule is that approved in Kingsley v. Balcombe,
The rule laid down in the Massachusetts cases seems to-be this: That where the main object of the promise is a benefit accruing directly to the promisor, and which he did not before eujoy, and the promise to pay the debt of another is a mere incident, then the accidental or incidental fact that the promise includes the answering for the debt-of another will not bring it within the statute; but where the main object is to obtain the release of the person or property of the debtor, or other forbearance or other benefit to him, then it is within the statute, though a new consideration moves directly to the promisor. Nelson v. Boynton, 3 Metc. 396; Furbish v. Goodnow, 98 Mass. 297. This rule has also been approved in New York, in the case of Mallory v. Gillett, 21 N. Y. 412, in which the cases are carefully examined. If we go beyond such peculiar cases, and except from the statute instances in which the debtor alone is interested, and where the debt still subsists, on the ground that there is a consideration to support the contract, we virtually repeal the statute, and leave the law as it was-before the act was passed.
We have turned to the cases in our own reports cited by
In Besshears v. Rowe, 46 Mo. 502, Rowe had sold real
In Barker v. Scudder, 56 Mo. 272, Barker sold to Scudder, and in part payment took notes of Able, who was insolvent when his note matured. The purchaser guaranteed the notes. It was held that his promise, though oral, was not within the statute. The principle involved here runs through a great number of cases. It has always been held that they are not within the intent of the law. The new and distinct consideration, independent of the debt of the maker, moving directly to the promisor, and being itself the main transaction, takes them out of the statute, within the meaning of Chancellor Kent’s exception as interpreted in Mallory v. Gillett and the Massachusetts cases cited above. In these cases the promise is to pay the debt existing to the promisor, and transferred to the promisee at the time the promise is made. The promise is not made to the party to whom the debt is owing (Eastwood v. Kenyon, 11 Ad. & E. 438), and the consideration originates in a new and independent dealing between the promisor and the creditor, the undertaking to answer the debt of another being a mere incident of the transaction. As the note is transferred, the indebtedness to the original creditor is gone, and he can look to the debtor merely as a surety for himself in case he has to take up the note when due. The case comes within a well-known class of cases excepted from the operation of the statute, and noted in the third class of exceptions in Mallory v.
In Glenn v. Lehnen, 54 Mo. 45, the court says that if plaintiff delivered the goods on the faith of defendant’s promise to be responsible as a surety for the purchaser, the promise is void unless in writing. And in Holt v. Dollarhide, 61 Mo. 433, Nice executed a note to McCloud, which McCloud assigned to plaintiff. Nice then sold a lot to Dollarhide, and directed him to pay the purchase-money to plaintiff, which Bollarhide agreed to do. The court says that defendant did not by this assume to answer for the debt.of another, but undertook to pay his own debt. This is also clearly within the meaning of- Chancellor Kent’s exception as interpreted both in Massachusetts and in Mallory v. Gillett, and is one of a well-known class of cases held to be outside of the statute ; though it has been strenuously contended that both such cases and that of which Barker v. Scudder is an example, and which are both manifestly promises to pay the debt of another in a merely formal sense, ought to be brought within the statute as being within the scope and meaning of the law.
In the case at bar, the promise was to pay the debt of another. Merrell was certainly not the bank. The promise was clearly collateral. Merrell was to pay the deposit to plaintiff if the bank should close; the indebtedness of the bank existed when the promise was made, and still subsisted. Here was no distinctly new consideration moving directly to the promisor, and substantial, so as to be a clearly sufficient motive for the transaction. The main object was forbearance to the bank, and any benefit to the
The case made by the petition, on the other hand, seems to be just one of those which the statute ivas mainly designed to meet, where words of recommendation or of encouragement to forbearance may be exaggerated or misunderstood, and represented as positive contracts, against the intention of the alleged guarantor, and where the law requires the most satisfactory evidence as to the precise language of the promise.
The judgment of the Circuit Court is affirmed.