Rottman v. Fix

• Citation: 25 Mo.App. 571
• Parties: J H. ROTTMAN ET AL., Appellants, v. HENRY FIX, Respondent.
• Decision Date: 19 April 1887
• Court: Court of Appeal of Missouri (US)

25 Mo.App. 571

J H. ROTTMAN ET AL., Appellants, v. HENRY FIX, Respondent.

Court of Appeals of Missouri, St. Louis.

April 19, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

THOMAS A. RUSSELL, for the appellants: The promise must be distinctly collateral, to come within the statute. 3 Pars Cont. 20; 2 Story Cont., sect. 1437. The promise sued on was original. Chase v. Day, 17 Johns. (N. Y.) 113 Flanders v. Orlino, 2 Duer 206; Post v Yeohegan, 5 Daly (N. Y.) 216; Hartley v. Vassar, 88 Ill. 561; McCoffee v. Redcliff, 3 Rob. 445. The promisor had a direct interest in the matter concerning which the promise was made. Kelley v. Schupp, 60 Wis. 176.

STONE & JOHNSON, for the respondent.

OPINION

ROMBAUER J.

The plaintiffs brought an action before a justice of the peace, on the following statement:

" The plaintiffs state that, on or about the twenty-third day of October, 1883, he sold to the defendant, Henry Bormann, at the instance and request of the defendant, Henry Fix, one barrel of 49 Gl. of Capitol whiskey, at $1.75 per gallon, $85.75; and six jugs of Steinhager, at $6, making a total of $91.75, for which the plaintiff prays judgment," etc.

Bormann was not served. Judgment was rendered against Fix, who appealed.

In the circuit court, the plaintiffs amended their statement so as to read:

" Henry Bormann and Henry Fix, to J. H. Rottmann & Co., Dr.

1883, October 23.

For 1 barrel (49 gals.) of Capitol whiskey, at $1.75 per gal $85 75

For six jugs Steinhager, at $1.00 6 00

$91 75"

Upon a trial of the cause before the court, sitting as a jury, the court declared, as a matter of law, that, under the evidence, the plaintiffs could not recover, and this is substantially the only error complained of.

The goods sued for were bought by the defendant, Bormann; they were ordered by him, delivered to him, and charged to him upon the plaintiff's books; the only controversy between the parties is, whether the promise of Fix to become responsible for their price was an original or collateral promise; if the latter, there could be no recovery, as the promise was not in writing.

Bormann was the son-in-law of Fix. The promise relied on is stated differently by the different witnesses of the plaintiffs. One of the plaintiffs testified that Fix stated to him, prior to the sale, that " he would hold himself responsible for all his son-in-law bought," and that he sold the goods to Bormann, relying on this promise. Another witness for the plaintiffs testified that he heard Fix say, prior to the sale: " Yes, sell him goods, and, if he don't pay, I will pay."

Neither of these statements tends to show that credit for the goods was given solely to Fix, nor does either of these statements tend to show that Bormann and Fix were treated by the plaintiffs as joint purchasers, and one, or the other, of these elements is essential, to make the promise of Fix an original promise. Browne on Stat. of Frauds, sect. 197. The cases relied on by the appellants, fail to support a proposition to the contrary. In Chase v. Day (17 Johns. 113), the court say: " The question is, whether the credit was given originally and solely to the defendant." In Post v. Yeoghegan (5 Daly 216) the court say: " To constitute an original obligation on...