Davis v. Dunn

• Decision Date: 05 November 1906
• Citation: 121 Mo. App. 490,97 S.W. 226
• Parties: DAVIS v. DUNN et al.
• Court: Missouri Court of Appeals

97 S.W. 226

121 Mo. App. 490

DAVIS v. DUNN et al.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

1. CONTRACTS—PARTIES—RIGHTS ACQUIRED BY THIRD PERSONS.

A tenant sold his stock of merchandise to a buyer, who agreed to pay 80 per cent. of the cost of the goods, and out of the purchase price items of indebtedness due from the tenant, including the rent due. The buyer paid debts of the tenant to the amount of more than the value of the goods, without paying the rent. Held, that the promise of the buyer for the benefit of the landlord was not an unconditional promise, and the buyer, on paying the debts of the tenant to the amount of the purchase price, was not liable for the rent.

2. SAME.

A buyer of goods agreed to pay, as a part of the purchase price, specified debts of the seller. The sale was annulled in bankruptcy proceedings against the seller. Held that, as seller could not thereafter enforce the contract, a creditor for whose benefit the buyer's promise was made could not enforce it.

3. NOVATION—WHAT CONSTITUTES.

A tenant, after selling his stock of merchandise, informed the landlord that the buyer would see that the rent was paid. The buyer informed the landlord that the rent was provided for, and that he would see that the same was paid. The landlord stated that it was all right. Held not to establish a novation.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by William Davis against J. H. Dunn and another. From a judgment for plaintiff, defendants appeal. Reversed.

L. A. Martin and C. C. Bigger, for appellants. Scott J. Miller and Frank S. Miller, for respondent.

ELLISON, J.

Plaintiff brought this action for rent alleged to be due him for a store building in the town of Wheeling. He prevailed in the trial court. It appears that plaintiff owned a building, which he had rented to James Collins, who left therein a stock of merchandise. There was due to plaintiff from Collins as rent the sum of $192.50 when Collins sold his stock to these defendants, the sale being evidenced by a written contract, in which defendants agreed to pay 80 per cent. of the cost of the goods, furniture, and fixtures, to be ascertained by an invoice, and which contained an additional provision that defendants should, "out of the proceeds and purchase price of said goods, pay" several specified items of indebtedness owing by Collins to different persons, the last of which items was the rent for which this action is brought. The evidence showed that these defendants paid and discharged enough of Collins' debts, as specified in the contract, to amount to more than the goods as invoiced, and they therefore refused to pay this plaintiff.

1. If we measure the liability of these defendants by the contract between them and Collins, we find there is no ground upon which plaintiff can stand to enforce payment of his rent from these defendants. Their written promise to Collins for plaintiff's benefit was not an unconditional promise. They were to pay the rent out of, and as a part of, the purchase price of the goods to be ascertained by invoice. They did pay debts of Collins on such purchase price until nothing more was due thereon, and they were not liable for anything further. The case, so considered, is controlled by that of Raithel v. Smith, 68 Mo. 258.

2. It appears that the sale by Collins to these defendants was afterwards annulled by proceeding in bankruptcy in the federal court for the Western district of Missouri, and the stock seized in proceeding in bankruptcy against Collins. It is...