Amonett v. Montague
| Decision Date | 31 October 1876 |
| Citation | 63 Mo. 201 |
| Parties | JAMES I. AMONETT, Appellant, v. EDWARD D. MONTAGUE, et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Howard County Circuit Court.
Guitar & Gordon, for Appellant.
I. If the debts of the covenantees were separate, the agreement, sued on, though joint in its terms, was joint or several.
II. The contract sued on was made with Robt. V. Montague by defendants, and made for the benefit of plaintiff, and he therefore had a right to sue and recover the amount of his separate debt or damages. (See Meyer vs. Lowell, 44 Mo. 329; Flanagan vs. Hutchison, 47 Mo. 237; Besshears vs. Rowe, 33 Mo. 118; Manny vs. Frazier's Adm'r, 27 Mo. 419; Robins vs. Myers, 10 Mo. 538; Rogers & Peck vs. Gosnell, 51 Mo. 467; Holt vs. Dollarhide, 61 Mo. 433.)
III. There was no legal presumption, on a proper construction of the contract, that the debt assumed was a joint one.
IV. The court erred in allowing Reuben V. Montague to be sworn, and to testify on the part of defendants. He being a party to the contract sued on, and Robt. V. Montague, the obligor in the contract, being dead, he was not competent to testify and should have been excluded by the court. (Wagn. Stat. p. 1372, § 1; Anderson, Adm'r, vs. Hand, 49 Mo. 159; Stanton vs. Ryan, 41 Mo. 510.)
V. The court erred in excluding the evidence of J. I. Amonett, the appellant. Robt. V. Montague, deceased, who was the obligor in the contract sued on, and with whom the defendants contracted to pay plaintiff's debt, was not a party to this suit; and appellant is not seeking in this action to make his estate or legal representatives liable for his debt.
Thos. Shackleford, for Respondents.
I. On the theory relied on to sustain this action that the contract was made for the benefit of plaintiff, then, Robert V. Montague and Michael Montague, both being parties to said agreement, and both dead, the plaintiff was not a competent witness to prove that he was the beneficiary intended by the agreement.
II. Reuben V. Montague, although a party to the original agreement with his father, yet, not being a party to this suit, is a competent witness. (Looker vs. Davis, 47 Mo. 140.)
III. Whatever may be the opinion of the court in regard to the question of competency or incompetency, the verdict being for the right party on the state of the pleadings, as admitted by the demurrer, ought to be affirmed. Even admitting the right of plaintiff to sue as upon a contract made for his benefit, and that the notes sued upon were the debts intended to be assumed, he cannot bring a suit in his own name without joining Hinds as a party so that the court may determine how much of the $12,000 agreed to be paid Hinds and Amonett is due to each. (Robbins vs. Ayers, 10 Mo. 538; Wagn. Stat. 1001; Bailey vs. Powell, 11 Mo. 414; Cartwright vs. Callaway Co., 10 Mo. 663; State vs. Hesselmeyer, 34 Mo. 76.)
IV. In this case it cannot be said from the terms of the contract (even if in full force) that the same was made for the benefit of the plaintiff and the other parties mentioned. On the contrary, the contract is made solely for the benefit of Bobert V. Montague, and he had the right to rescind it. This case is clearly distinguishable from the case of Rogers vs. Gosnell, (58 Mo. 589;) and comes directly within the principles laid down in the case of Page vs. Becker, 37 Mo. 466; and Murry and others vs. Frazier's Adm'r, 27 Mo. 419, see also Fithian vs. Monks & Brooks, 43 Mo. 502.
On the 12th day of August, 1861, Robert V. Montague sold and transferred to M. L. Montague, Reuben V. Montague and the defendants, C. R. and E. D. Montague, a large amount of real and personal property, situate in the State of Louisiana, for and in consideration of the sum of about $80,000, for which the said grantees gave their promissory notes and their promise to pay the amount of a certain legacy, and in further consideration of the promise and agreement of said grantees to pay off and discharge certain enumerated debts of the said Robert V. Montague, amounting in the aggregate to $62,100.
In the list of obligations so assumed to be paid, appears the following statement of indebtedness: “And due to B. F. Hinds and J. I. Amonett, amounting, principal and interest, to about $12,000.”
Upon the foregoing undertaking of defendants' the plaintiff seeks to recover the full amount of two promissory notes, for the sum of $1,153 45100 each, made and delivered to the plaintiff by the said Robert V. Montague on the 23d day of July, 1860, and payable respectively on the 10th day of June, 1862, and on the 10th day of June, 1863, with interest at eight per cent. Plaintiff alleged in substance that said notes represented part of the indebtedness of the said Robert V. Montague provided for in said contract, and that the said indebtedness of the said Robert V. Montague to him, provided for in the contract aforesaid, arose solely out of the notes aforesaid; that they were payable to him alone, and that B. F. Hinds had no interest whatever in them.
Numerous defenses were interposed which were adjudged insufficient on demurrer, and the only question submitted to the jury was, whether the promise of the defendants applied to the claim presented by the plaintiff.
To ascertain that fact both parties agreed that parol testimony was admissible, and testimony was adduced upon that point without objection. This testimony tended to show that the indebtedness of Robert V. Montague to Hinds and Amonett was several and not joint. The deposition of the plaintiff was offered, and excluded on the ground that Robert V. Montague, who was a party to the contract sued on, was dead. Reuben V. Montague, one of the parties to the contract sued on, but not a party to the suit, was sworn as a witness and testified in relation thereto, against the objections of the plaintiff.
The following instruction given by the court at the request of the defendants, was objected to by the plaintiff: “The jury are instructed that the presumption of law is, that the debts intended to be paid by the defendants by said written agreement, were debts due and owing by R. V. Montague, or M. L. Montague, to Hinds and Amonett jointly, and it devolves upon the plaintiff to prove to the satisfaction of the jury, that the notes of R. V. Montague to plaintiff were intended to be paid by virtue of said agreement, and unless the jury so believe from the evidence, they must find for the defendants.”
There was a verdict and judgment for the defendants, from which plaintiff has appealed to this court.
The exceptions taken by the defendants to the action of the court on the pleadings and...
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