Ring v. Kelly

Decision Date07 June 1881
Citation10 Mo.App. 411
PartiesFRANK RING, EXECUTOR, Respondent, v. ANDREW J. KELLY ET AL., Appellants.
CourtMissouri Court of Appeals

An action cannot be maintained against a surety in a bond given by a builder to indemnify the owner against mechanics' liens, where the bond is executed after the building contract and without any new consideration.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

A. R. TAYLOR, for the appellants.

JOHN JOHNSON and D. P. DYER, for the respondent.

THOMPSON, J., delivered the opinion of the court.

On February 14, 1876, the defendant Kelly entered into a written contract with the plaintiff's testator, whereby the former agreed to build the latter a house. He entered upon the work, and on April 21st, at the request of the plaintiff's testator, he executed, with the defendant Druhe as surety, the usual bond to indemnify him against mechanics' liens. This action is brought for a breach of this bond; judgment has been rendered against Kelly by default; and the contest is only between the plaintiff and the surety. Druhe pleaded, among other things, that the bond was given without consideration; and in the view we take, the decision of this question must decide the case. Our statute (Rev. Stats., sect. 3725) allows specialties to be impeached for want of consideration; the defendant's answer in this respect is sufficiently formal, and the question is properly before us.

The law relating to the consideration necessary to support contracts of guaranty was very clearly stated by Chief Justice Kent in a leading case: ““There are,” said he, “three distinct classes of cases on this subject, which require to be discriminated: 1. Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal or direct debtor. Here, as we have already seen, is not, nor need be, any other consideration than that moving between the creditor and original debtor. 2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not an inducement to it, though the subsisting liability is the ground of the promise without any direct and connected inducement. Here must be some further consideration shown, having an immediate respect to such liability; for the consideration for the original debt will not attach to this subsequent promise. 3. The third class of cases * * * is when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties Leonard v. Vredenburgh, 8 Johns. 29, 39. The case before us falls within the second class of cases thus defined; and it is settled law in this State, as elsewhere, that in such a case there...

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4 cases
  • School Consolidated Dist. No. 10 of Arbyrd v. Wilson
    • United States
    • Missouri Supreme Court
    • December 14, 1939
    ...is void and cannot be enforced in this action. Henry County v. Salmon, 201 Mo. 163; Kirkwood v. Meramec Highland, 94 Mo.App. 637; Ring v. Kelly, 10 Mo.App. 411; Keith County Ogala, 64 Neb. 35, 89 N.W. 375; 9 C. J., pp. 20, 21. (3) The proof shows the charter of the Citizens Bank had expired......
  • Farmers' & Traders' Bank of Auxvasse v. Harrison
    • United States
    • Missouri Supreme Court
    • December 31, 1928
    ...the date of the bond, there was no consideration for the bond, and hence defendants incurred no liability in signing the same. Ring v. Kelly, 10 Mo.App. 411; Peck v. Harris, Mo.App. 467. Ellison, C. Lindsay and Seddon, CC., concur. OPINION ELLISON This is a suit on a bond given by the defen......
  • Farmers & Traders Bk. v. Harrison
    • United States
    • Missouri Supreme Court
    • December 31, 1928
    ...the date of the bond, there was no consideration for the bond, and hence defendants incurred no liability in signing the same. Ring v. Kelly, 10 Mo. App. 411; Peck v. Harris, 57 Mo. App. ELLISON, C. This is a suit on a bond given by the defendants as sureties to the plaintiff, the Farmers &......
  • Belcher Sugar Ref. Co. v. St. Louis Grain Elevator Co.
    • United States
    • Missouri Court of Appeals
    • June 7, 1881

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