Philibert v. Burch

• Decision Date: 20 November 1877
• Citation: 4 Mo.App. 470
• Parties: BENJAMIN PHILIBERT ET AL., Respondents, v. CHARLES H. BURCH, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 470

BENJAMIN PHILIBERT ET AL., Respondents,

v.CHARLES H. BURCH, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 20, 1877.

1. Where the petition alleges a direct undertaking by the defendant, and the reply charges a guaranty only, this is a departure, and the reply may be stricken out on motion. If there be no motion to strike out, the defect will be cured by verdict.

2. Where a written instrument is so ambiguous in its terms that it may be considered either a guaranty or a direct undertaking, according to the circumstances under which it was given, and the testimony as to these circumstances is conflicting, it is error to give instructions based upon the assumption that the contract was a direct undertaking; but the question of direct undertaking or guaranty should be directly submitted to the jury, on proper instructions.

3. Where parol testimony is not inconsistent with a written instrument, it is admissible to apply such instrument to its subject.

4. Points not made in the court below will not be examined on appeal.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

G. A. CASTLEMAN, for appellant: Guaranty.-- Rankin v. Childs, 9 Mo. 673; Central Savings-Bank v. Shine, 48 Mo. 456; 2 Pars. on Con. 18; 2 Story on Con., sec. 1123. When plaintiff sets up a contract in his petition, he cannot recover on a different contract, though it be set up in the defendant's answer.-- Perry v. Barret, 18 Mo. 145. Pleadings; departure.-- The State v. Grimsley, 19 Mo. 177; Sterns v. Patterson, 14 Johns. 132; Palmer v. Stone, 2 Wilson, 96. Principal and surety.-- Brown v. Riggin, 3 Kelly (Ga.), 505; Long v. Brovam, 3 Stockt. 59; Hubbon v. Carpenter, 5 Barb. 520.

PARISH & GRIFFIN, for respondents: Guaranty.-- Hutchinson v. Moody, 18 Me. 393; Hunt v. United States, 1 Gall. 32; Naylor v. Moodey, 3 Blackf. 93; Hunt v. Bridgham, 2 Pick. 581; Fuller v. Milford, 2 McLean, 74. Points not made in the trial court will not be noticed by an appellate court.-- Case v. Fogg, 46 Mo. 44.

LEWIS, P. J., delivered the opinion of the court.

The petition states, in substance, that the plaintiffs, Philibert & Johanning, a partnership firm, are the successors of Philibert & Branconnier, who, in 1872, contracted with defendant for the sale and delivery to him of certain manufactured lumber and materials, to be used in the building of a female academy at Fulton, for which defendant was to pay them $3,000; that plaintiffs have, by assignment, succeeded to all the rights of Philibert & Branconnier in the contract; that on May 31, 1872, “by authority and direction in writing, of that date, signed by defendant, said Philibert & Branconnier were ordered to deliver said work to Wright & Bell, of Fulton, Missouri, but that said defendant, in and by said order or agreement therein contained, obligated and held himself responsible for the payment of said work to said Philibert & Branconnier;” that all the work and materials were accordingly furnished to Wright & Bell, who had paid on account thereof $1,550; that plaintiffs had demanded the remaining $1,450 of Wright & Bell and of defendant, but the same yet remained unpaid, etc.

The answer admits the making of the original contract, and avers that defendant was at that time contractor for building the female academy at Fulton; that, subsequently, Wright & Bell became the contractors in his stead, and thereupon, by agreement of all parties concerned, defendant's contract with Philibert & Branconnier was transferred to Wright & Bell, and the account was opened in their names, they becoming, in defendant's stead, the debtors and obligors for the work and materials to be furnished; that thereafter, upon the request of Philibert & Branconnier, defendant signed the paper mentioned in the petition, as a guarantor merely; that Wright & Bell were at that time fully solvent, and that Philibert & Branconnier, moreover, could have protected themselves by a lien on the academy at Fulton; but that, by negligence and a failure to exercise any reasonable diligence whatever, they had failed to collect their demand of Wright & Bell, whereby the defendant was discharged.

The reply admitted that the contract with Philibert & Branconnier was transferred to Wright & Bell, but “only upon condition that defendant became responsible therefor, as averred in the petition; and thereupon defendant signed the agreement on which this suit is instituted, and was, for and on account thereof, always held and regarded as liable to plaintiffs.”

The issues were tried by a jury, whose verdict was for the plaintiffs. Defendant moved in arrest of judgment, alleging a departure in the plaintiffs' pleadings. The petition declares upon a direct undertaking by the defendant, and seems to treat the paper signed by him as a mere direction of the mode of delivery of the lumber for which he was to pay as purchaser. The reply, admitting that the defendant's original contract was transferred to Wright & Bell, plainly declares, in effect, that the defendant thereupon ceased to be a direct obligor. His subsequent responsibility, therefore, could be that of a guarantor, only, for his succesors. The allegation of a condition that he became responsible “as averred in the petition” can avail nothing. If this relates to the original undertaking, there is an incongruity; since that was complete long before the transfer. If it relates to the time of the transfer, there is...