De Buhr v. Thompson

• Decision Date: 07 December 1908
• Citation: 134 Mo. App. 21,114 S.W. 557
• Parties: DE BUHR v. THOMPSON et al.
• Court: Missouri Court of Appeals

114 S.W. 557

134 Mo. App. 21

DE BUHR v. THOMPSON et al.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

1. PARTIES (§ 1)—WHO MAY SUE.

Where defendants gave plaintiff their check on the C. bank for the amount of their debt to him, and he presented it to the F. bank, which took it, stamped it "Paid," and presented it to the C. bank, which refused payment for want of funds, objection, in his action of debt against them, that the F. bank was the proper and necessary plaintiff, is not tenable; the action not being on the check, and such bank not claiming any interest in it, and it being presumed such bank charged the check back to plaintiff, leaving the obligation between plaintiff and defendants as if no check had been given.

2. COMPROMISE AND SETTLEMENT (§ 6)—CONSIDERATION.

There being no dispute as to the indebtedness, or any part of it, and so nothing to compromise, the payment of part of it and a release from further liability is not binding as a compromise.

3. COMPROMISE AND SETTLEMENT (§ 6)—"COMPOUND."

The word "compound" in Rev. St. 1899, § 897 (Ann. St. 1906, p. 831), allowing a creditor to compound with debtors and release them from further liability, means the same as compromise, so that there must be consideration for the compounding.

4. APPEAL AND ERROR (§ 194)—RESERVATION OF GROUNDS.

Defendant, if entitled to judgment on his answer for want of a reply traversing its allegations, should have moved for judgment; and having, instead of doing so, tried his case as though the matters were in issue, he cannot complain on that account on appeal.

Appeal from Circuit Court, Atchison County; Wm. C. Ellison, Judge.

Action by Gusche De Buhr against Rich Thompson and another, partners as Thompson & Maxwell. Judgment for plaintiff. Defendant Thomas Maxwell appeals. Affirmed.

Hunt & Bailey, for appellant. Lewis J. Miles, for respondent.

BROADDUS, P. J.

This is an action for debt. The facts are as follows: On and prior to the 8th day of September, 1906, the defendants, Thompson & Maxwell, were doing business as partners at Phelps City, in Atchison county, on which day the plaintiff sold to them as such partnership a large quantity of corn for the sum of $601.04, for which amount they gave her a check on the Citizens' National Bank of Atchison County. The plaintiff delayed collecting the sum called for in the check for several months, but she finally presented it to the Farmers' Bank, which took the check, stamped it "Paid," and presented it to the Citizens' National Bank, which declined to pay it from want of funds. In a short time thereafter plaintiff went to the business place of defendant Maxwell, and then, according to the testimony of defendant Maxwell, she agreed that, if he would pay half the debt, she would give him a full receipt, and that Thompson had agreed to pay the other half. The plaintiff...