Barker v. Soudder

• Decision Date: 31 March 1874
• Citation: 56 Mo. 272
• Parties: WILLIAM S. BARKER, Respondent, v. WILLIAM H. SOUDDER, Appellant.
• Court: Missouri Supreme Court

56 Mo. 272

WILLIAM S. BARKER, Respondent,

v.WILLIAM H. SOUDDER, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

John W. Noble, for Appellant.

I. Notice should have been averred and proved. (Lewis vs. Bradley, 2 Ired., 305; Herring's case, Cro. Jac. 432, 2 Saund., 62; Rex vs. Holland, 5 Tenn., 62; Spooner vs. Baxter, 16 Pick, 419; Greece vs. Ricks, 3 Dev., 362; Adcock v. Fleming, 2 Dev. & Bat., 470; Lewis vs. Brewster, 2 McLean, 31; Sage vs. Wilcox, 6 Conn. 31; Rankin vs. Childs, 9 Mo., 674.)

Hamilton & Musser, for Respondent

I. Notice of non-payment was not necessary. (2 Am. Lead. Cas. 60, 133; Stern vs. Marks, 35 Barb., 565; Lampherd vs. Cowan, 42 Verm., 175; James vs. Scott, 59 Pa. St., 182; 2 Am. Lead. Cases, [5th. Ed.] 59; Vinal vs. Richardson, 13 Allen, 527; Montgomery vs. Kellops, 43 Miss. 496; Hall vs. Rogers, 7 Humph., 541; Craig vs. Parker, 40 N. Y., 181.)WAGNER, Judge, delivered the opinion of the court.

This was an action on a verbal guaranty. The petition set forth that plaintiff sold defendant a certain lot of ground in consideration that defendant would pay off and discharge an encumbrance on the same for $5,000, and pay plaintiff a further sum of $5,000; that defendant paid plaintiff $241 in cash, and for the balance of the $5,000 delivered two certain notes of Barton Able, indorsed by Dan. Able, each for $2,379.50, at sixty and ninety days, which notes defendant then and there guaranteed and promised the plaintiff would be paid at the times they fell due respectively, or, if not paid at maturity, could be collected in full of said Ables by legal process; that plaintiff relied on said assurance and guaranty of the defendant, that the same would be paid by said Ables at maturity, or could be collected from them by process of law; that the notes were not paid; that the Ables, at maturity of said notes, were insolvent, and continue so; that suits were commenced at terms of the court next following maturity, judgments obtained and writs of execution returned unsatisfied, of all which defendant then and there had notice, and the prayer is for judgment for the amount of the notes, interest and costs.

The answer denied all the material averments in the petition, and also pleaded the statute of frauds.

The trial was before the court sitting as a jury, and there was a great deal of conflicting testimony introduced in reference to the agreement of the parties, as to how or under what circumstances the notes were received by the plaintiff. At the request of both parties, the court made a special finding of facts. The finding was that the defendant agreed with the plaintiff to assume and pay, as part of the consideration and purchase money, for the lot sold and conveyed to him (and which he did subsequently pay off), an incumbrance of $5,000 existing on said lot; that in addition thereto, and for the balance of said purchase money, defendant agreed to pay plaintiff the sum of $5,000; that the defendant paid to plaintiff, in money, or his check therefor, the sum of $241, and for the balance of said $5,000 delivered to said plaintiff the two notes, mentioned in the petition, dated October 17, 1868, made by Barton Able, payable to the order of Daniel Able, and indorsed by the latter, each for the sum of $2,379.50, payable respectively at sixty and ninety days after date, with interest at six per cent. per annum from date; that for the purpose of inducing the plaintiff to take the said notes on account of the said purchase money, the defendant promised and assured the plaintiff that the same would be paid when they fell due, and, if not paid, they could be collected by plaintiff of said Ables; that in taking said notes on account of said purchase money the plaintiff relied upon the said assurance and promise of the defendant; that the said notes above described were the only ones that were ever delivered or came to the possession of the plaintiff; and to which alone the said oral guaranty applied; that said notes not being paid at maturity, were duly protested for non-payment, and notice of the non-payment and protest of the first falling due was immediately thereafter given by plaintiff to defendant, but no notice was given of the non-payment or protest of the second of the said notes, nor was any notice given to the defendant of the result of the suits next hereinafter mentioned; that suits were instituted by the plaintiff on the said two notes against the said Ables at the term of the St. Louis Circuit Court next succeeding the respective maturity thereof, which suits were diligently prosecuted to final judgment, on which judgments executions were duly issued to the sheriff of the county of St. Louis, returnable to the term of the said court next succeeding said judgments, which executions were duly returned by the said sheriff nulla bona, and said notes still remain wholly due and unpaid; that the said Ables, at the maturity of said notes, were insolvent, and have ever since continued to be insolvent; and the plaintiff in court tenders to the defendant assignments of the said judgments. The court therefore found the issues for the plaintiff, and declared the law accordingly, and gave judgment for the amount of the principal and interest of the notes so found to be guaranteed.

The finding of the facts made by the court must be regarded here as the special verdict of a jury, and the question we are to determine is whether the court correctly declared the law as applicable to those facts.

The statute of frauds, though...