228 S.W. 827 (Mo. 1921), Allen West Commission Co. v. Richter

Citation:228 S.W. 827, 286 Mo. 691
Opinion Judge:RAILEY, C.
Party Name:ALLEN WEST COMMISSION COMPANY, Appellant, v. GUSTAV RICHTER
Attorney:S. H. West and Anderson, Gilbert & Hayden for appellant. A. & H. N. Arnstein and Henry H. Furth for respondent.
Judge Panel:RAILEY, C. Mozley and White, CC., concur. Mozley and White, CC., concur.
Case Date:March 07, 1921
Court:Supreme Court of Missouri
 
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Page 827

228 S.W. 827 (Mo. 1921)

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

[286 Mo. 695]

Page 828

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 [286 Mo. 696] 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...

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