Byrd v. Fox

• Citation: 8 Mo. 574
• Parties: BYRD v. FOX.
• Decision Date: 31 January 1844
• Court: United States State Supreme Court of Missouri

8 Mo. 574

BYRD

v.FOX.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM PLATTE CIRCUIT COURT.

JONES and HICKMAN, for Appellant. 1. Any promise or agreement made to pay Fox the one-half he got for the contract is void for want of consideration. See 1 N. Y. Dig. 39; 6 Johns. R. 194; 8 ibid. 444. 2. If any promise was made by Byrd to pay one-half he got for the contract, it was conditional (viz): “To pay when he got some money,” and until he (Fox) shows that he (Byrd) has had money subsequent to the promise, he is not entitled by law to recover. See 1 N. Y. Dig. 38; 14 Johns. 178; 1 Cowen, 349; 7 Johns. R. 36. 3. There was no partnership existing between appellant and appellee. See 3 Kent's Com. 23, 24; 1 Hammond's Ohio R.; Ohio Cond. R. 41. 4. If the appellant and appellee were partners, then the appellee was not entitled to recover in the court below, because the partnership matters between them had not, from the evidence, been finally adjusted. See Collyear on Part. 143, note 1; 5 Mo. R. 112.

THOMAS and BALDWIN, for Appellee. 1. The Circuit Court did right in giving the plaintiff's instructions, and in refusing the first, third, and fourth asked by the defendant. The only question which we conceive to arise in this case is, whether there was a sufficient consideration to support the promise of Byrd, the appellant.

The law is well settled, that the promise of one party is a good consideration for the promise of the other. Vide Chitty on Contracts, 4th ed., p. 40, and notes; 9 Barn. and Cres. 840, 849, 850; 3 Barn. and Ald. 803; 8 Johns. R. 304, Briggs v. Tillotson. “The mere promise of a party to become a partner in a firm is a sufficient consideration for a promise to receive him as a partner.” Chitty on Contracts, 40, 15. A benefit to one party, or loss or injury to the other, is a good consideration on which to found a promise. 2. The partnership matters were adjusted, and a promise by the appellant to pay the appellee his share of the profits. If there had not been a final adjustment, the jury had a right to find according to the equity of the case. See Rev. Code, 348, § 1.

SCOTT, J.

Fox sued Byrd in a justice's court, where, after judgment, the cause was taken to the Circuit Court, when upon a trial de novo, he recovered judgment for $37, from which Byrd appealed to this court. It was agreed between Byrd and Fox, that Byrd should go to Fort Leavenworth, and put in a bid in their joint names, to furnish the garrison with fifteen hundred cords of wood, and that they should be equal partners in the contract; that Byrd might bid as he thought most advisable, and Fox would be responsible jointly with him for his acts. Byrd made a bid for the contract, and his bid was the same with those of two others: it was then agreed among the several bidders, that Byrd and one of them should together have one-half of the contract, and the other bidder the remaining half. Byrd sold his interest in the contract for seventy-five dollars, and afterwards told Fox that he had made a good bargain, and would pay him his half of the profits as soon as he could get some money; that he considered if any loss had happened, Fox would have borne his share of it.

The only questions arising upon this statement of facts are, whether there was a sufficient consideration for the promise of Byrd, and whether, being partners, if one could sue the other in an action ex contractu.

As to the first point, it has been held, that...