Carr v. Card

• Decision Date: 31 March 1864
• Citation: 34 Mo. 513
• Parties: ARCHIBALD CARR et al., Respondents, v. WILLIAM H. CARD et al., Appellants.
• Court: Missouri Supreme Court

34 Mo. 513

ARCHIBALD CARR et al., Respondents,

v.WILLIAM H. CARD et al., Appellants.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Circuit Court.

R. S. Voorhis, for appellants.

I. The petition in this case does not state facts sufficient to constitute a cause of action.

It does not show that the defendants, appellants here, were in any manner connected with the indebtedness of the steamboat, either as owners or otherwise. The instrument sued on is not a specialty and imports no consideration.

There being no evidence to show that defendants were in any manner connected with the indebtedness of the boat as owners of any interest therein, there does not appear any consideration for the instrument on which the action is based.

II. The document pleaded and put in evidence by the plaintiffs, is not a promise to answer for the debt of another person. It does not appear that the defendants had any right to act, in any manner, in relation to the debt on the part of the boat. No one represented or acted for the boat so as to raise a consideration for the promise. It was voluntary, without consideration, moving on the part of the boat. Even if it can be construed to be a promise to answer for the debt of the steamboat, the contract by which the plaintiffs furnished supplies and materials to the boat, and acquired their lien, was executed and entirely past before the instrument sued on was made. They are not, therefore, liable on the contract sued on; it is a nudum pactum. (Robertson v. Findlay, 31 Mo. 384; 8 Johns. 37.)

III. The plaintiffs treat Eads as a principal, and Card as his security. In this relation Card cannot be held under the contract alleged in this case.

The evidence, and the plaintiffs' own admissions show that they had no obligation upon Eads for the debt of the boat. Eads was in no way indebted to them. There was no primary or principal obligation of Eads, so that he could have no accessary. The consideration entirely fails. (1 Pothier on Obliga. 204, 205, 206 & 229, t. p.)

C. S. Hayden, for respondents.

I. The obligation of defendant Card to pay the debt was an original and absolute undertaking on his part, as the written agreement shows. The consideration of Card's undertaking was the detriment to plaintiffs', i. e. the giving up their lien. Of course it was not necessary that defendant Card should have derived any benefit from the agreement.

II. Even on the supposition that defendant Card was liable, not as an original promisor, but as a guarantor; yet in that event the guaranty was an absolute and not a collateral one, and no demand or notice was necessary. If Card had signed the agreement expressly as guarantor, his liability to pay would have been absolute without demand or notice, on his principal's failure to pay at the time specified. (Cooper v. Page, 24 Me. 73; Breed v. Hillhouse, 7 Conn. 523; McDougal v. Calef, 34 N. H. 534; Upham v. Prince, 12 Mass. 15; 12 East. 227.)

DRYDEN, Judge, delivered the opinion of the court.

This was a suit by the payees against the payors, founded on the following instrument of writing, viz:

“Whereas there is due to Carr & Kennett for supplies and materials furnished the steamboat Duncan S. Carter, the sum of three hundred and one dollars, for which said Carr & Kennett have a lien on said steamboat, her engines, machinery and appurtenances; and whereas the time in which said lien can be enforced under the statutes against the same is about to and will soon expire; now we, the undersigned, William H. Card and William H. Eads, in consideration of said Carr & Kennett (which firm is composed of Archibald Carr and Mortimer Kennett) not suing on and enforcing their lien against said steamboat, her machinery, & c., but suffering the same to expire by lapse of time, and giving up said lien or right to proceed against said property in specie (the original debt on account of said supplies furnished still existing, and not being in any way surrendered or satisfied) and in consideration of five dollars by us in hand, received from Carr & Kennett, we agree to pay said Carr & Kennett, within seven months from the date of this instrument, the sum of three hundred and one dollars aforesaid ($301), and to become personally responsible to them for said debt and liable to them therefor. Given under our hands this first day of November, 1859. (Signed,) William Eads, William H. Card & Co.”

The defendant Eads made...