Boyd v. Camp
| Decision Date | 31 October 1860 |
| Citation | 31 Mo. 163 |
| Parties | BOYD et al., Defendants in Error, v. CAMP et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
1. Where, from want of compliance with the terms of a written contract or from the fact that its terms have been varied by parol, an action can not be maintained on it, the whole matter is thrown into parol, and the written contract is of no avail except as bearing upon the measure of damages and other like matters.
Appeal from Warren Circuit Court.
The points decided are sufficiently apparent from the opinion of the court.
McClellan, Moody & Hillyer & C. Wells, for plaintiffs in error.
I. This action is upon a written contract under seal for the delivery of cross-ties. Maurice was not a party to the contract. Credit was given to Camp alone. There was no privity between plaintiffs and Maurice. The demurrer and motion for a new trial were by both defendants. If Maurice had separately demurred on the ground of misjoinder the suit ought to have been dismissed as to him. Camp has been deprived of the testimony of Maurice by the joining of him as a party. The court erred in overruling the demurrer. The instructions given were erroneous. The jury are instructed that they can find against both defendants. The law of dormant partnership was improperly applied to a contract not of a mercantile character. This contract was not of such as one partner can make in his own name so as to bind the firm. No persons are bound but those who signed it. (See Story on Part. § 102, 136, 142.) The first instruction asked should have been given. (1 Mo. 121.)
Lewis, for defendants in error.
I. The objection as to misjoinder could not be considered under the motion in arrest. (R. C. 1855, p. 1231, § 610.) It is immaterial to consider here whether the two defendants could be joined in one suit. The only question is whether upon the facts stated in the petition Maurice can be held liable at all. He is so liable. (2 H. Bl. 235; 12 East, 422; 8 Car. & P. 345; 1 Wash. C. C. 490; 5 Bro. 491.) Besides the action was not brought on the contract. (23 Mo. 228; 27 Mo. 308; 6 N. H. 481; 7 Pick. 181; 29 Mo. 28.) The instructions given were right. .) There was no error in the refusal asked for by the defendants. (11 Texas, 273; 4 Iowa, 1; 5 Mich. 123.)
This was an action to recover the value of cross-ties for a railroad, brought against the defendants Camp and Maurice. The defendant Camp was under a contract, it seems, to furnish ties to the North Missouri Railroad Company. That he might be enabled to discharge the obligation which rested on him, he entered into a contract under seal with the plaintiffs, by which they were to deliver ties at certain places and within specified periods, and containing other stipulations. The plaintiffs delivered ties under this contract, but not having complied with the terms of it themselves, they could not sue upon it, but brought an action to recover the value of the ties which had been delivered on account of Camp. This action was against both Camp and Maurice; the plaintiffs alleging that they were partners in procuring ties for the North Missouri Railroad Company.
There was a demurrer to the petition, for the reason that Maurice was improperly joined as a co-defendant. Even conceding that the demurrer was in proper form, there can be nothing in it. The action is not on the sealed contract made with Camp. That contract is but inducement to this action, which is brought to recover the worth of the ties the defendants received from the plaintiffs; and as the defendants jointly derived a benefit from their labor and materials, it is nothing but justice that they should jointly pay for them. When a written contract is varied by parol or from any other cause an action can not be maintained upon it, and it is made the inducement to another action to recover the value of...
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State ex rel. Place v. Bland
... ... written contract for the sale of the land, the whole ... agreement must be regarded as resting in parol, Boyd v ... Camp, 31 Mo. 163, 165; and therefore violates the ... statute of frauds, Sec. 3354, R.S. 1939 and Mo., R.S.A. The ... defendant contends ... ...
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Koons v. St. Louis Car Company
...the parties, except as bearing upon the measure of damages and such matters. This contention is fully sustained by the case of Boyd v. Camp, 31 Mo. 163. While the question pleading was not raised in that case, yet the point has been before this court in other cases. It will not be denied th......
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State ex rel. Place v. Bland
...orally modified the original written contract for the sale of the land, the whole agreement must be regarded as resting in parol, Boyd v. Camp, 31 Mo. 163, 165; and therefore violates the statute of frauds, Sec. 3354, R.S. 1939 and Mo., R.S.A. The defendant contends reliance on that statute......
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Koons v. St. Louis Car Co.
...the parties, except as bearing upon the measure of damages and such matters. This contention is fully sustained by the case of Boyd v. Camp, 31 Mo. 163. While the question of pleading was not raised in that case, yet the point has been before this court in other cases. It will not be denied......