Boone County Lumber Co. v. Niedermeyer

• Decision Date: 01 February 1915
• Parties: BOONE COUNTY LUMBER CO., Respondent, v. F. W. NIEDERMEYER, Appellant
• Court: Kansas Court of Appeals

173 S.W. 57

187 Mo.App. 180

BOONE COUNTY LUMBER CO., Respondent, v. F. W. NIEDERMEYER, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1915

Appeal from Boone Circuit Court.--Hon. Samuel Davis, Special Judge.

AFFIRMED.

Judgment affirmed.

James L. Stephens for appellant.

(1) A contract to assume and agree to pay the debt of another when made with the creditor is within the Statute of Frauds, and unenforceable. Bambrick v. Bambrick, 157 Mo. 423; Nunn v. Carroll, 83 Mo.App. 135; Parsons v Kilso, 141 Mo.App. 369; Haeberle v. O'Day, 61 Mo.App. 390. (2) The verdict is against the evidence. The sufficiency of the evidence is challenged by this ground stated in a motion for a new trial. Spohn v Railroad, 87 Mo. 74; Wilson v. Albret, 89 Mo 537; Caruth v. Richeson, 96 Mo. 192; Whitsett v. Ranson, 79 Mo. 258; Doening v. Sann, 56 Mo. 479. (3) If there is no consideration there is no contract, and burden is on the plaintiff to show a valid contract. Haeberle v. O'Day, 61 Mo.App. 394; Parsons v. Kelso, 141 Mo.App. 373; Page v. Becher, 31 Mo. 466; Jones v. Miller, 12 Mo. 408. (4) The contract must have been made for the creditor's benefit and the benefit as to him must not be merely incidental. Bank v. Chick, 170 Mo.App. 343; Bank v. Com. Co., 139 Mo.App. 110; Schide v. Bank, 120 Mo.App. 611; State ex rel. v. Towns, 88 Mo.App. 500; Hill v. Railroad, 82 Mo.App. 188; Housan v. Water Co., 119 Mo. 304.

McBaine & Clark for respondent.

(1) The contract in question was for the direct benefit of the plaintiff lumber company, and defendant was liable to plaintiff for its breach, even though plaintiff was not a party to the contract. Lawrence v. Fox, 20 N.Y. 268; Bank v. Benoist, 10 Mo. 521; Rogers and Peak v. Gosnell, 51 Mo. 466; Same case, 58 Mo. 589; St. Louis v. Von Phul, 133 Mo. 561; Porter v. Woods, 138 Mo. 539; Crone v. Stinde, 156 Mo. 262; Bank v. Chick, 170 Mo.App. 343. (2) Defendant, by voluntarily submitting his cause to the jury without demurring to the testimony at the close of the evidence, admitted that there was sufficient evidence to take the case to the jury and cannot shift his position on appeal. Hopkins v. Modern Woodmen of America, 94 Mo.App. 402; Eberly v. Railroad, 96 Mo.App. 361; Kenefick-Hammond Co. v. Fire Ins. Co., 205 Mo. 295; Hanson v. Boyd, 161 U.S. 402; Hartford Ins. Co. v. Unsell, 144 U.S. 451; Donnell v. Wright, 147 Mo. 639, 648; Riley v. Kansas City, 161 Mo.App. 290; Seiter v. Bischoff, 63 Mo.App. 157; Riggs v. Railroad, 216 Mo. 304. (3) The defendant did not question the sufficiency of the evidence to support the verdict, in his motion for a new trial and therefore, cannot upon appeal raise the question that plaintiff's proof was insufficient. Byrd v. Vanderburgh, 168 Mo.App. 112; State v. Scott, 214 Mo. 257, 261; Aultman & Taylor Machinery Co. v. Organ, 149 Mo.App. 102.

OPINION

TRIMBLE, J.

--This is a suit wherein the plaintiff, a corporation, bases its cause of action upon an alleged contract, made for plaintiff's benefit, between defendant and one Carl L. Torbitt. Plaintiff was not a party to said contract, but says it was cognizant of it, and relied thereon in selling to Torbitt the bill of lumber, payment of which is now sought to be recovered.

Plaintiff was engaged in the business of selling lumber and building materials, and the officers of the Lumber Company had known the defendant Niedermeyer fifteen or twenty years. They were not acquainted with Torbitt and met him for the first time when the lumber was sold. Torbitt owned two lots in Columbia which he desired to improve by building two houses thereon.

Plaintiff's evidence tended to show that prior to the sale of the lumber to Torbitt, defendant told McAlester, plaintiff's secretary and treasurer, and apparently general manager of the business, that Torbitt was going to build these two houses, and that he, (defendant) was going to finance the project; that he was going to obtain a loan for Torbitt on the lots, and asked if the company would carry the account until defendant could obtain said loan; that he had agreed with Torbitt to lend him the money upon "two deeds of trust which the Torbitts were to give him and that he was to place out," and had agreed with Torbitt to pay therefrom the lumber company for the lumber furnished; and that he would see that the bills therefor were paid. The evidence in plaintiff's behalf tended further to show that about ten days after this conversation with defendant Niedermeyer, Torbitt came to the Lumber Company for the first time, and plaintiff learned from him also that the understanding was that Niedermeyer was to negotiate two deeds of trust upon the houses and obtain loans thereon and hold back sufficient money to pay the lumber bills; that thereupon the lumber was sold for said houses in reliance upon said contract, and with the understanding that Niedermeyer would pay the bills; that, as soon as the houses were built, or at least as soon as one of them was finished, plaintiff presented the bills to Niedermeyer, but he did not pay them and gave as a reason that he had not, as yet, been able to place the notes, and asked for more time; that Niedermeyer never denied his duty to pay the bills, and on one occasion wanted to settle the account by giving the lumber company one of the notes secured by a deed of trust.

The undisputed evidence was that Torbitt owned the lots in question and that he and his wife executed two deeds of trust on said lots, one on one lot for $ 700 and the other on the other lot for $ 600, and that, with the two, Niedermeyer obtained $ 1300 which was more than enough to pay plaintiff's bills, which aggregated only $ 798.42. Torbitt and Niedermeyer both say Niedermeyer obtained $ 1300 on the two deeds of trust and that Niedermeyer turned all of it over to Torbitt except some that Torbitt owed Niedermeyer for oak lumber used in the houses. Neither of them could say definitely how much this was, but they finally placed the amount turned over to Torbitt at something around $ 700. Their bank accounts did not show that Niedermeyer turned any over to him, and the men do not specify nor show how it was turned over. It is not seen how plaintiff's rights can be affected whether Niedermeyer turned a part of the money over to Torbitt or still has all of it. Plaintiff's rights depend upon whether there was a contract between Torbitt and Niedermeyer that if the former would execute the deeds of trust upon his lots, the latter would obtain sufficient money thereon to pay, and would pay, the plaintiff's lumber bills, and upon the further question whether or not those deeds were executed and Niedermeyer obtained the money. If such was the contract and Niedermeyer obtained the sum of $ 1300, then plaintiff's rights do not depend upon whether Niedermeyer turned a part of the money over to Torbitt or kept it. Those rights depend upon whether plaintiff can sue upon the contract between Niedermeyer and Torbitt.

Defendant introduced evidence denying that there was any contract between him and Torbitt whereby he was to pay plaintiff's bills out of the $ 1300 he got as a loan on the lots, and also denying that he told plaintiff's officers of any such contract or that he would hold back enough money of such loan to pay for the lumber furnished.

In addition to plaintiff's affirmative and express evidence as to the existence of such a contract between Niedermeyer and Torbitt as plaintiff claimed, and that it was made for plaintiff's benefit and that plaintiff was cognizant thereof and relied thereon when it sold the lumber, there were certain facts and circumstances tending to corroborate plaintiff's version. The first count of plaintiff's petition alleged a sale of lumber to Torbitt and a contract on the part of Niedermeyer with plaintiff to pay for same. This count was dismissed and recovery was asked solely on the second count. Defendant contends that, if plaintiff's evidence shows anything, it shows a contract on Niedermeyer's part with the plaintiff to pay for the lumber as pleaded in the first count and not a contract between Niedermeyer and Torbitt whereby the former agreed with the latter to pay the debt, as pleaded in the second count. Consequently, defendant claims that, as the only count which the evidence might tend to support has been dismissed no recovery can be had. It is doubtless true that the evidence of McAlester does contain the statement of an agreement on Niedermeyer's part with plaintiff to pay Torbitt's bills. But it, together with other evidence introduced on plaintiff's behalf as well as the inferences which can be drawn from all the facts and circumstances, if believed by the jury, also shows that Niedermeyer agreed, in his contract with Torbitt, to pay plaintiff's bill out of the money obtained by him, that the purpose of this contract was for the benefit of plaintiff, and that plaintiff was fully cognizant of it and relied thereon in parting with the lumber. If such a contract existed, then the mere fact that Niedermeyer may also have promised plaintiff that he would see the lumber bills were paid would not affect plaintiff's right to recover on such Torbitt-Niedermeyer contract. It being for the jury to say whether the facts pleaded in the second count were or were not true, and the jury having found that they were, then we must so accept them, provided, of course, there was substantial evidence on which to submit such issue to the jury. On the case as tried and as presented by the record, we are of the opinion that there was substantial evidence to support the finding. In addition to this, no demurrer to the evidence was interposed. This failure to demur, together with the joining with plaintiff in asking the court to instruct upon the issue and in...