Tate v. Barcroft

• Decision Date: 30 April 1822
• Citation: 1 Mo. 163
• Parties: TATE v. BARCROFT.
• Court: Missouri Supreme Court

1 Mo. 163

TATE

v.BARCROFT.

Supreme Court of Missouri.

April Term, 1822.

APPEAL FROM THE CIRCUIT COURT OF HOW ARD COUNTY.

M'GIRK, C. J.

This was an action of covenant brought by Tate the appellant, against Barcroft. The declaration states, that on the ____ day of ____, &c., the said Elias made his covenant (without saying to whom he made it), and that he thereby covenanted (without saying with whom), that he would become responsible (without saying to whom), for the one-half of a certain note for $408, given by Tate, and one Turby, to W. V. Rector & Co.; and also, that he Barcroft, would forever free the said Tate from any costs that might accrue on said note. The breach is, that Barcroft did not become responsible and free the said Tate from costs &c. A plea of accord and satisfaction is pleaded, and issue thereon. The Court find for plaintiff, and assesses damages, &c. A motion is made in arrest of judgment, on the following reasons: First, Turby is jointly interested, and is not a party, Second, That if Tate could sue alone, it would only be for costs that would accrue. Third, It has not been alleged in the declaration, that judgment was recovered on the note of Tate to Rector and Co., for which the writing declared on was given as an indemnity. Fourth, The breach is not sufficiently assigned Upon these reasons the Court arrested the judgment. As to the first objection, there is nothing in it. As to the second, that Tate could only sue for costs, if he could sue at all, he must sue for all, for Barcroft binds hims if to become responsible. The breach is, that he has not done it. This objection is not tenable. The third objection is, the want of the allegation that judgment was recovered against Tate, on the note to Rector & Co. The undertaking is not that Barcroft will indemnify, but that he will become responsible. The breach is, that he has not become responsible, &c. therefore, this objection is not well founded. Fourth, The breach is not sufficiently assigned. The breach here is as large as the covenant, and that is enough. If a breach is not well assigned, in most cases, it is only cause of demurrer, and not cause in arrest of judgment. The breach is, perhaps, larger than the covenant, but should have been demurred to; so this objection fails.^(a) But, yet, this judgment of the Circuit Court cannot be reversed, because, on the whole record, judgment is given for the right party. The declaration should have stated with whom Barcroft covenanted, and...