Amonett v. Montague

• Decision Date: 31 October 1881
• Citation: 75 Mo. 43
• Parties: AMONETT v. MONTAGUE, Appellant.
• Court: Missouri Supreme Court

75 Mo. 43

AMONETT

v.MONTAGUE, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

REVERSED

The facts will be found stated in the opinion in volume 63 Mo. Rep. 203.

Gage & Ladd for appellant.

1. Under the laws of Louisiana, the Montagues, father and son, had complete control of the contract and might rescind or abandon it at their own arbitrary volition, at any time before the plaintiff consented to it. Whatever would be a good defense for the sons against a suit by the father, is equally good against this action by plaintiff. La. Civil Code, arts. 1884, 1896; Tiernan v. Martin, 2 Rob. (La.) 523; Brandon v. Hughes, 22 La. Ann. 360; Mitchell v. Corley, 5 Rob. 243; Union Bank v. Bowman, 9 La. Ann. 195; Janney v. Ober, 28 La. Ann. 281.

2. Delivery of possession of the property sold, especially of the slaves, was an essential part of the act of sale; without it there was no consideration for the undertaking of defendant. Having failed to consummate the sale by delivery, Robert V. Montague could not have recovered from his sons, and consequently plaintiff cannot recover. Benjamin on Sales, (2 Ed.) book 2, chap. 7; La. Code, art. 2458.

3. Robert V. Montague, by the agreement sued on, guaranteed to his sons the title to all the property conveyed. A portion of the lands were subject to mortgages to plaintiff, Hinds and others. The title to these lands has thus far failed. The creditors did not, during the life of R. V. Montague, consent to accept the assumption of the vendees; it was, therefore, beyond their power to obtain a clear title to the lands. Under these circumstances the father could not enforce the contract, and consequently plaintiff cannot.

4. Robert V. Montague's debt to plaintiff was barred by the statute of limitations of Louisiana before plaintiff assented to the stipulation in his favor. The contract of defendant was to pay--not the notes sued on--but “due to B. F. Hinds and J. I. Amonett, amounting, principal and interest, to about $12,000.””” It was a sum due and owing The sons could only pay what their father owed. The father died April 21st, 1866. The statute of limitations barred the debt and it could not be revived, he being dead. The contract of defendant does not create or extend the father's liability; it only agrees to meet it.

5. Either plaintiff was incompetent to testify, or Montague was competent. Under the law of Louisiana certainly, a third party for whose advantage a promise is made, by consenting thereto, becomes a party to that contract The contract between the father and sons, before it was assented to by plaintiff, was in the nature of a proposition to plaintiff by the father and sons, that the sons might and would--with plaintiff's consent--pay him the father's debt. By consenting he accepted the proposition so made. That proposition so made and accepted constituted a contract between plaintiff, of the one part, and the father and sons of the other part, or else it was a tripartite contract between the father of the first part, the sons, of the second part, and plaintiff of the third part. If the former view is correct, then, there being two parties of the first part, and only one of them, the father, dead, all the remaining parties are competent, and it was error to exclude defendant If the latter view is the proper one, and the contract tripartite, then one party being dead, all the remaining parties were incompetent, and the plaintiff should have been excluded Fulkerson v. Thornton, 68 Mo. 468

Chas. A. Winslow and T. Shackelford also for appellant.

The contract between defendant and Robert V. Montague, is not, in a direct and literal sense, “in issue and on trial” in this action, within the meaning of the statute, but is only incidentally involved as it respects the original parties. The real “contract or cause of action in issue and on trial” here, is the promise of defendant to Robert V. Montague to pay plaintiff's debt, to which the law by a fiction attaches a privity in favor of plaintiff, and permits him to sue upon it as though originally entered into with him. In other words, for the purpose of maintaining the action the law treats the contract as one between plaintiff and defendant. Or, treating Robert V. Montague as the trustee of an express trust, as was done in Rogers v. Gosnell, 51 Mo. 466, the same results would follow. In either case, his death would not render either party to this action an incompetent witness. If incompetent as to some matters, defendant was certainly not so as to all. Looker v. Davis, 47 Mo. 140; Poe v. Domic, 54 Mo. 119; Martin v. Jones, 59 Mo. 181; Amonett v. Montague, 63 Mo. 201; State v. Huff, 63 Mo. 288; Bradley v. West, 68 Mo. 69. Under article 1895 Louisiana Civil Code, the Montagues had a right to rescind the contract, and this was a good defense. Davis v. Calloway, 30 Ind. 112; 15 Am. L. Rev. 250. So much of the answer as set up a failure of consideration presented a valid defense to this action. The consideration which supports the plaintiff's action is the consideration which supports the deed containing the promise on which he sues. It is in legal effect an action for the purchase money reserved in the deed. In an action by the grantor against the grantees for this purchase money the failure of the consideration, total or partial, would have been a good defense. Why, then, cannot the same defense be made available against this plaintiff? Union Bank v. Bowman, 9 La. Ann. 195; Lapene v. Delaporte, 27 La. Ann. 252; Loeb v. Weis, 64 Ind. 285. The statute of limitations is a good defense. Civil Code La., arts. 1884, 3505; R. S. Mo. 1879, § 3230; Mitchell v. Cooley, 5 Rob. 240; Wiggin v. Flower, 5 Rob. 414; Twichel v. Andry, 6 Rob. 410; Bell v. Lawson, 12 Rob. 152.

Wellington Gordon and Ewing & Hough for respondent.

Although a mortgage was retained by plaintiff on lands sold by him to R. V. Montague, to secure his notes to plaintiff, this was a transaction had between plaintiff and R. V. Montague, and did not in any way affect the liability of defendant on his written assumption to pay what he owed deceased to plaintiff, nor was this all of the property conveyed by R. V. Montague to defendant and his brothers. No release of the mortgage retained by plaintiff was necessary to fix the liability of defendant, nor was it necessary for any to move from plaintiff to defendant to bind him to pay the obligation, nor was it necessary for plaintiff to accept or adopt said promise, in order to bind defendant. The law presumes he accepted, if made for his benefit, and to overthrow this presumption, a dissent must be shown. Rogers v. Gosnell, 58 Mo. 589. The non-delivery and receipt of the property conveyed by R. V. Montague, deceased, to defendant, is no legal defense to plaintiff's action. The authentic act declared on, vested the title to the property conveyed in defendant and his brothers, and the right to reduce the same to possession; and the non-receipt of the consideration constituted no legal defense to the action under the laws of the state where made, nor under the laws of this State. Civil Code of La., arts. 1895, 1944, 1945, 1952, 2231, 2233, 2234, 2242. The contract sued on could not, by parol, and without the knowledge or assent of plaintiff, be rescinded or annulled by agreement between R. V. Montague and defendant and his brothers, and without a re-conveyance of the estate acquired by defendant from R. V. Montague under the contract sued on. Berly v. Taylor, 5 Hill 584; Rogers v. Gosnell, 58 Mo. 591. The plea of the statute of limitations of the state of Louisiana is no bar to plaintiff's action, as the lex fori governs the question of limitation, and said plea, as set up, goes to the original debt and not to the covenant sued on. McMerty v. Morrison, 62 Mo. 140; Carson v. Hunter, 46 Mo. 467; Baker v. Stonebraker, 36 Mo. 341. Robert V. Montague, who was the obligor in the contract sued on, and with whom defendant contracted to pay plaintiff's debt, being dead, and defendant being a party to the suit and a party to the contract or cause of action in issue and on trial, he was incompetent to testify. Angell v. Hester, 64 Mo. 142; Looker v. Davis, 47 Mo. 143; Amonett v. Montague, 63 Mo. 205; Stanton v. Ryan, 41 Mo. 510; State v. Meagher, 44 Mo. 356; Johnson v. Quarles, 46 Mo. 423; Byrne v. McDonald, 1 Allen 293; Hubbard v. Chapin, 2 Allen 328; Granger v. Bassett, 98 Mass. 462; Man'f'g Bank v. Scofield, 39 Vt. 590; Schwickerath v. Cooksey, 53 Mo. 82.

HOUGH, J.

This case is now here on the appeal of the defendants. When it was here before on the appeal of the plaintiff, (63 Mo. 201,) it was decided by this court that the plaintiff was a competent witness, and that parol...