Ring v. Kelly
Decision Date | 07 June 1881 |
Citation | 10 Mo.App. 411 |
Parties | FRANK RING, EXECUTOR, Respondent, v. ANDREW J. KELLY ET AL., Appellants. |
Court | Missouri 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.
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, 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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...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......
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...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......
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...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 &......
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