Allen West Commission Co. v. Richter

• Decision Date: 07 March 1921
• Citation: 228 S.W. 827,286 Mo. 691
• Parties: ALLEN WEST COMMISSION COMPANY, Appellant, v. GUSTAV RICHTER
• Court: Missouri Supreme Court

228 S.W. 827

286 Mo. 691

ALLEN WEST COMMISSION COMPANY, Appellant, v. GUSTAV RICHTER

Supreme Court of Missouri, Second Division

March 7, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Affirmed.

S. H West and Anderson, Gilbert & Hayden for appellant.

(1) Consideration is presumed from signature. R. S. 1909, sec 2774; Wulze v. Schaefer, 37 Mo.App. 551. And it is not necessary to plead any consideration. Eyermann v. Piron, 151 Mo. 115; Montgomery County v. Auchley, 92 Mo. 126. (2) Under the Statute of Frauds it is unnecessary to state the consideration in the promise to pay the debt of another. Little v. Nabb, 10 Mo. 3; Roberts v. Griswold, 35 Vt. 496; Standard Supply Company v. Finch, 154 N.C. 456; Black v. McBain, 32 Ga. 128; Reid v. Evans, 17 Ohio 128; King v. Upton, 4 Me. 387; Packard v. Richardson, 17 Mass. 122; Ellett v. Button, 10 Tex. 208; Sage v. Wilcox, 6 Conn. 81; Goodnow v. Bond, 59 N.H. 150; Gillighan v. Boardman, 29 Me. 79; Haskill v. Tukesbury, 92 Me. 555; International Company v. Flemming, 109 Me. 108. (3) Relation of stockholder is sufficient consideration. (4) A prior oral promise to pay the debt of another is sufficient consideration to support a latter written promise. Wills v. Ross, 77 Ind. 1. A moral obligation is a sufficient consideration to support a subsequent promise to pay the debt of another. Post v. Losey, 111 Ind. 88. (5) Forbearance is a sufficient consideration for an agreement to pay the debt of another and the evidence offered in this case made a prima facie showing of such forbearance as a consideration; where the party does not testify, the usual unfavorable and damaging presumptions are to be indulged in. Schooler v. Schooler, 258 Mo. 96; Ins. Co. v. Smith, 117 Mo. 294; Mabury v. McClurg, 74 Mo. 575; Baldwin v. Witcomb, 71 Mo. 651; Stevenson v. Kilpatrick, 166 Mo. 269. Evidence is to be weighed in the light of ability to produce and when that which is available and is not produced, the inference is that it is unfavorable and the failure to call a friendly witness having personal knowledge of the facts in issue, raises a presumption of inference that the witness's testimony would have been detrimental. Burridge v. Ins. Co., 211 Mo. 175; Kirk v. Middlebrook, 201 Mo. 287; Brooker v. Trainer, 172 Mo.App. 379; Bryant v. Lazarus, 235 Mo. 612; Kame v. Railroad, 254 Mo. 194.

A. & H. N. Arnstein and Henry H. Furth for respondent.

(1) The writing "Exhibit A" declared on as a guaranty, is not, in fact, an agreement, undertaking or promise, but merely an expression of the defendant's intent, purpose or expectation. (2) No consideration can be presumed from defendant's signature to "Exhibit A" under Sec. 2774, R. S. 1909, as the writing is not within the statute. (a) It is not a promise. (b) No sum of money or property is therein mentioned. (c) The paper on its face shows allowances were to be made. (d) To determine the amount, reference must be had to an independent document not identified by the writing itself, but only by oral testimony. (e) Neither the name of original debtor nor creditor is mentioned in the writing to indicate what the paper referred to. (3) The court erred in admitting "Exhibit 1" in evidence, as parol evidence is not admissible to connect a series of papers under the Statute of Frauds; the writing signed by the party to be charged must itself identify them. Biest v. Versteeg Shoe Co., 97 Mo.App. 154; Peycke v. Ahrens, 98 Mo.App. 456; Leesley Bros. v. Fruit Co., 162 Mo.App. 195; Johnson v. Fecht, 185 Mo. 335; First Baptist Church v. Bigelow, 16 Wend. 28; Johnson v. Buck, 35 N. J. L. 338; Frank v. Miller, 38 Md. 450; Ordman v. Lossen, 49 Md. 135; Darge v. Bond, 46 Md. 164; Ridgeway v. Ingram, 50 Ind. 145. (4) Under the Statute of Frauds the consideration for a guaranty must be set forth in the guaranty itself. Reigart v. Coal & Coke Co., 217 Mo. 142; Ordman v. Lossen Bros., 49 Md. 135; Darga v. Bond, 46 Ind. 164; Culbertson v. Smith, 52 Md. 628; Moore v. Folsom, 14 Minn. 340; Hazeltine v. Larco, 7 Cal. 32. And the court erred in admitting the alleged guaranty, "Exhibit A," in evidence, as it carries no consideration on its face. (5) Plaintiff, having undertaken in its petition to state a consideration, it was necessary for it to plead and prove a valuable consideration, although if Section 2774 were applicable it would not have been necessary for plaintiff to have either pleaded or proved a consideration. Glasscock v. Glasscock, 66 Mo. 627. (6) Mere forbearance to sue is not a valid consideration; there must be an agreement to forbear. Queal & Co. v. Peterwood, 116 N.W. 543, 19 L. R. A. (N. S. 842; 20 Cyc. 1417, 1418; Powers v. Woolfork, 132 Mo.App. 360; Mandle v. Horspool, 198 Mo.App. 655. (7) Assuming that a previous parol promise had been proven (which it was not), nevertheless such promise was without consideration, Waggoner v. Davidson, 189 Mo.App. 344, and could not support a subsequent written promise without consideration. MacFarland v. Heim, 127 Mo. 327; Iron Co. v. Jenks, 229 Mass. 95; Guillott v. Guillott, 141 La. 81; Guimarian v. Trust Co., 90 S.E. 319. (8) As no parol promise was pleaded, plaintiff could not properly introduce evidence thereof, and the court erred in admitting such evidence. Iron Co. v. Jenks, 229 Mass. 95. (9) Neither a legal nor a moral obligation rests against a stockholder to pay the debts of his corporation; hence a promise by him to do so, to be enforcible, must be supported by a valuable consideration; furthermore, the law does not enforce purely moral obligations. Waggoner v. Davidson, 189 Mo.App. 345; Greenham v. Elliott, 60 Mo. 35. (10) The defendant had the right to stand on his demurrer; his failure to testify did not create evidence for plaintiff. Kerstner v. Vorweg, 130 Mo. 196; Diel v. Railroad, 37 Mo.App. 454. (11) Moreover, the defendant could not have testified as his transactions were had with Mr. Allen, who was dead.

RAILEY, C. Mozley and White, CC., concur.

OPINION

RAILEY, C.

This action was commenced in the Circuit Court of the City of St. Louis, on September 14, 1917. The petition alleges that plaintiff is a Missouri corporation; that the Piggott Store Company was also a Missouri corporation; that on September 1, 1914, there was due plaintiff, from the last named company, the sum of $ 10,755.13, as per account then rendered; "that on November 1, 1914, the defendant, in writing, herewith filed and marked 'Exhibit A,' guaranteed and promised to pay said sum, and plaintiff forebore to prosecute said claim in consideration thereof; that plaintiff has frequently demanded payment of said sum from defendant, but that defendant has failed and refused to pay the same. Wherefore, plaintiff prays judgment against defendant for the sum of $ 10,755.13, together with interest at the rate of six percent per annum from November 1, 1914, and for its costs."

The amended answer contained a general denial, and also the following:

"And for further defense, defendant says that, although said petition charges defendant upon an alleged special promise to answer for the debt of another, yet the alleged agreement upon which the action is brought is not in writing, nor is there any memorandum or note thereof in writing, signed by the defendant or some other person by him thereto lawfully authorized.

"And for another and further defense, defendant says that there was no consideration for his said alleged promise.

"Wherefore, having fully answered, defendant prays to be hence discharged with his costs."

The reply was a general denial of the new matter pleaded in defendant's amended answer.

Amos T. Skinner was sworn as a witness and testified substantially as follows: That he was secretary and treasurer of the Allen West Commission Company, whose corresponding office was at Little Rock, Arkansas; that plaintiff ceased to do active business about the 1st of January, 1916, which was about four months after Mr. Allen's death.

At this point counsel for defendant objected to the introduction of any further testimony, for the reason that the petition fails to state a cause of action; that it does not set forth that there was any consideration for the execution of this guaranty. This objection was overruled and an exception saved.

Witness further testified in substance that he was connected with plaintiff from 1888 until 1893, and again from 1904 to date of trial; that during the above times, he knew who defendant was, and knew him by sight; that after 1904 defendant was in plaintiff's office, and witness saw him frequently for a year or so; that during this time defendant was president of the Piggott Store Company, and plaintiff, during that time, did business with said company, through defendant as its president; that witness kept plaintiff's books, saw and read all of its correspondence, and sent a statement of the Piggott Store Company to defendant every year while he kept the books, up to September 1, 1914, inclusive.

Plaintiff's Exhibit 1 was shown to witness, and he testified that the amount stated in this form was in his handwriting; that the date was not in his handwriting; that the name at the top of the form is in his handwriting; that he is certain the amount stated is the correct balance of that account on that date that Exhibit 1 was sent to plaintiff's office at St. Louis, Missouri, signed "G. Richter, ex-president;" that it was received back through the mail. Witness does not recall having opened the envelope containing it; that he saw it in a batch of mail that had come in. He could not say whether it was by itself or attached to something else; that he saw it while it was with Exhibit 2; that they were together; that he saw no other statement with the letter; sometimes witness...