Cheltenham Fire-Brick Co. v. Cook

• Decision Date: 31 March 1869
• Parties: THE CHELTENHAM FIRE-BRICK COMPANY, Respondent, v. ISAAC COOK, Appellant.
• Court: Missouri Supreme Court

44 Mo. 29

THE CHELTENHAM FIRE-BRICK COMPANY, Respondent,

v.ISAAC COOK, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

The facts sufficiently appear in the opinion of the court.

Krum, Decker & Krum, for appellant.

I. The Circuit Court erred in admitting in evidence the statements of Theodore Cook, made to Charles M. Elleard, A. B. M. Thompson, and Richard J. Howard, concerning the amounts of money for which he was in arrear to his employers. These statements of Theodore were not made in the presence of the defendant, nor while he was authorized by any relation which he held to the defendant to bind him by his admissions. The defendant, by his writing, had promised to pay, not what Theodore Cook may have admitted to be due, but whatever amount was due in fact by Theodore to his employers. The indebtedness of Theodore to his employers was to be proved. This could be shown by the books he had kept while in their employ, settlements between them, etc.; but, clearly as against his surety, it was not competent to show it by declarations to third parties in the absence of the defendant and unconnected with the course of his business. (1 Phil. Ev. 525, 4th Am. ed.; 1 Greenl. Ev. § 187; State, to use of Squire, v. Bird, 22 Mo. 473; Blair v. Perpetual Ins. Co., 10 Mo. 567.) The admissions of a surety to bind his principal stand on the same footing of admissions of an agent to bind his principal. The declarations of the agent bind the principal only when they are made during the existence of the agency and in the line of his duties. (Rogers v. McCune, 19 Mo. 557; Ready v. Steamboat Mary, 20 Mo. 264.)

II. The defendant's promise was nudum pactum, and absolutely without any consideration valid in law. He received nothing, nor did plaintiff give up any right or suffer any inconvenience. ( a) The illegality of the consideration, or the absence of a consideration, may be given in evidence as a defense to a promise, though the promise be under seal. (Gen. Stat. 1865, p. 686, § 24; Collins v. Blantern, 1 Sm. Lead. Cas. 154; and cases hereinafter cited.) ( b) An antecedent debt due by A. to B. constitutes of itself no binding consideration for the promise to pay by a stranger, although the promise of the stranger be in writing. A written promise is necessary, by the statute of frauds, to make one party liable for the debt of another; but the statute of frauds does not dispense with the necessity of a valid consideration. (Cook v. Elliott, 34 Mo. 586.) Where the promise of the surety is made at the time of the creation of the debt, such debt is a sufficient consideration. But where the promise of the surety is made after the debt has been created, the past debt is not per sesufficient consideration. (Robertson v. Findley, 31 Mo. 388; Pfeiffer v. Kingsland, 25 Mo. 66.) Where the promise of the surety is made in consideration of extension of time granted to the principal debtor, the creditor must be bound to give the extension, else there is no consideration which will bind the surety. (Russell v. Buck, 11 Verm. 166; Deacon v. Gridley, 28 Eng. L. and Eq. 345; 15 C. B. 295.) Mutual promises, of course, constitute valid considerations to pay the debt of another, but such promises must be mutually binding. (Pars. Cont. 448, 5th ed., cited in 41 Mo. 391.) In this State it is conclusively settled that a promise to give time by a creditor is not binding on the creditor and does not estop the creditor from collecting his debt by suit. (Bridge v. Tiernan, 36 Mo. 439.) Hence, such promise by a creditor to extend time still leaves the creditor to his right to sue at once, and is therefore no valid consideration for the promise of a stranger to pay the debt or secure its payment.

III. If an agreement to dismiss a pending criminal prosecution forms in whole or in part the inducement or consideration for a promise, such promise is absolutely void. The doing of any act by the promisee prohibited by law, or against the policy of the law, is an illegal consideration for a promise. Any promise made wholly or in part in consideration of the doing of something prohibited by law, or against public policy, or against public morals, is absolutely void. It is clear that if a contract be made on several considerations, one of which is illegal, the whole promise will be void. (Featherston v. Hutchison, Cro. Eliz. 199; Waite v. Jones, 1 Bing., N. C., 662; Shackell v. Rosier, 2 Bing., N. C., 634; Howden v. Haigh, 11 Ad. and El. 1036; Crawford v. Morrell, 8 Johns. 253.) The stifling of any criminal prosecution, commenced either by indictment of a grand jury or by complaint before an examining magistrate, is against the policy of the law, and hence is an illegal consideration (or rather no valuable consideration) for a promise. (Pars. Merc. Law, 29; Coppock v. Bower, 4 Mees. & W. 361.) Although the security for a debt or the promise of payment of a debt constitutes a part of the consideration for the promise of a stranger, yet if part of the consideration be the promise to dismiss a criminal prosecution it taints the promise and makes it void in toto. (9 Ad. & El. 371; Clark v. Ricker, 14 N. H. 48; Gardner v. Maxey, 9 B. Monr. 90; Town of Hinesburg v. Sumner, 9 Verm. 23; Bell v. Wood's Adm'r, 1 Bay, 249; Den v. Moore, 2 South. 470; Badger v. Williams, 1 Chipm. 137; Raguet v. Roll, 7 Ohio, 76; Shaw v. Spooner, 9 N. H. 197; 22 Am. Jur. 23, 24; Bank v. Matthewson, 5 Hill, 252.) The receiving back of one's own goods or money taken by theft, larceny, or embezzlement, upon agreement not to prosecute, and with or without a reward for so doing, is a punishable offense at common law. (1 Hale's Crim. Prac. 546.) If A., who hath his goods stolen by B., receives them back again upon agreement not to prosecute, or to prosecute faintly, this is theft bote, and punishable by imprisonment. (1 Hale's Crim. Prac. 619; 2 Blackst. Com. 133.) Sections 15 and 16, Gen. Stat. 1865, p. 801, make it a felony to compound a felony, and a misdemeanor to compound a misdemeanor.

IV. The instruction given by the court, of its own motion (in lieu of the second and third instructions asked by defendant and refused), is erroneous, and tended to mislead the jury. This instruction in effect declares that the agreement of Howard to dismiss the criminal prosecution then pending was not an illegal consideration, unless Howard knew that Theodore Cook was guilty of the crime of embezzlement. Under this instruction, before the jury could find for defendant, they were required to find not only that the promisee had instituted a criminal prosecution against Cook, and had dismissed or agreed to dismiss such criminal proceedings as the consideration for obtaining this promise, but also that the promisee knew that Cook was guilty of having embezzled moneys; in other words, that the dismissal of a criminal prosecution as the consideration for a promise did not per se render such executory promise void. No adjudged case can be found in the reports which warrants this position. No author can be cited who approves such a doctrine. No valid reason can be urged to sustain it. But, on the contrary, all the adjudged cases, from the leading case of Collins v. Blantern (1 Sm. Lead. Cas. 154) down to the latest American authority, uniformly hold the doctrine that any executory promise, founded in part or in whole upon an agreement to dismiss or stifle or embarrass any criminal process pending, is absolutely not enforceable against the promisee.

V. The petition in this case is not sufficient to sustain the judgment of the court below. It does not appear from the petition whether the plaintiff sues for money belonging to the plaintiff or to Evans & Howard. The plaintiff does not state that it is either the assignee or trustee of Evans & Howard, in respect to the moneys of the latter firm which Theodore Cook embezzled. Where a party sues as assignee of a chose, or as trustee of an express trust, the character in which he sues should be stated. It is traversable matter. The instrument contains several promises to pay several sums of money to different parties. The question, then, arises, in what capacity does the plaintiff sue in this case? Is it as trustee of an express trust? Then it should appear by apt averments that the plaintiff sues for the money due to Evans & Howard, and for which the defendant became bound. This does not appear. So, on the other hand, if the plaintiff seeks to recover the money due to itself, it should be so averred in the petition. Though several causes of action arising out of the same transaction may be united in the same petition, yet they must be separately stated. (Field v. Meyer, 37 Mo. 434.) The judgment asked for in a petition is a material part of it. (Rutherford v. Williams, 42 Mo. 18.) It is plain in this case that the pleader has blended two separate and distinct causes of action in the same count, and judgment is asked in solido for two separate and distinct causes of action.

Glover & Shepley, for respondent.

I. The cause of action on the bond was complete as soon as the thirty days had passed.

II. The action was well brought in the name of the Cheltenham Fire-Brick Company. The bond was made in trust to the corporation to cover all the moneys embezzled by Cook. The bond was beneficial to Evans & Howard, and the law presumes their assent to it; and when the defendant Cook has settled with the Cheltenham Fire-Brick Company for the moneys due to Evans & Howard, they cannot call on him to account again. (Miles v. Davis, 19 Mo. 408; Sto. Eq. Pl. § 150; Gen. Stat. 1865, p. 651, § 3.) A trustee of an express trust may sue in his own name.

III. That Theodore Cook was under arrest at the time the bond was given is no defense, provided the process was not abused to any purpose of injustice. (Taylor v. Cottrell, 16 Ill. 93; Holmes v. Hill, 19 Mo. 160; Nealley v. Greenough, 5 Foster, 325.) The bond was not invalid as to Theodore, though given...