Elmer v. Campbell

• Decision Date: 09 March 1909
• Citation: 117 S.W. 622,136 Mo. App. 100
• Parties: ELMER et al. v. CAMPBELL et al.
• Court: Missouri Court of Appeals

117 S.W. 622

136 Mo. App. 100

ELMER et al. v. CAMPBELL et al.

St. Louis Court of Appeals. Missouri.

March 9, 1909.

1. TRUSTS (§ 63¾)—RESULTING TRUST—RECEIPT OF MONEY BELONGING TO ANOTHER— APPLICATION.

Sureties on a note released a mortgage indemnifying them under agreement that $75 of the proceeds of a sale of the land be turned to them to be applied to the note. The purchaser gave a check for the $75, which was delivered to one surety, B., by his co-sureties for delivery to the payee; but he deposited it in a company's safe, intending to pay it to the payee later. An officer of the company cashed it and credited the proceeds on a debt due the company from the maker of the note. Held, that the company received the check in trust, and not as part of its general assets.

2. CONTRACTS (§ 54)—CONSIDERATION—SEVERAL PARTIES — CONSIDERATION MOVING FROM ALL.

Where a promise is made for the benefit of several persons, it is not essential to a recovery that each of them should have paid some consideration for the promise.

3. JOINT ADVENTURES (§ 7) — ANTECEDENT AGREEMENTS—LIABILITY OF MEMBERS.

Both the parties to a joint purchase of a stock of goods are bound by a promise of one of them, whereby the purchase was made possible, regardless of whether they were partners when it was made.

4. PRINCIPAL AND SURETY (§ 180)—PAYMENT OF MONEY—RIGHT TO RECOVER.

The right of such sureties to recover from a purchaser at a sale in bankruptcy of the property of the mercantile company on a promise to pay the amount of such check, does not depend upon payment of the note by them, since the note belonged to plaintiffs as between them and such purchaser.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by William P. Elmer and others against Joseph Campbell and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Robert Lamar and A. J. Arthur, for appellants. W. P. Elmer and J. M. Stephens, for respondents.

GOODE, J.

Plaintiffs J. R. Callahan and America Callahan were principals on a promissory note for $200, executed and delivered to the Dent County Savings Bank, on which plaintiffs Elmer, Dye, and Collier were sureties, and were indemnified by a deed of trust on a tract of land. The Callahans sold and conveyed the land to J. A. Murray. The sureties on the note to the bank released the deed of trust given to indemnify them, on an agreement that $75 of the purchase money should be turned over to the sureties to be applied on the note. Murray gave a check for this sum, which was turned over by the other sureties to Collier, to be by him delivered to the bank for credit on the note. Collier intended to do this, but for some reason deposited the check in the safe of the Dent County Mercantile Company. Powell, an officer of the company, took the check, cashed it, and credited it on an account which J. R. Callahan owed the company. The evidence is conflicting regarding how this came to be done. For the plaintiff it tends to prove Collier put the note in the mercantile company's safe, telling Powell it was not to go in payment of Callahan's account to the company, but was to be turned over to the bank. Powell testified Collier told him the check was "to be used in lieu of Callahan's account" until the note became due, but Callahan should have the right to withdraw it and pay the proceeds to the bank on the note; that maybe the note would be paid in some other way, and, if so, the account would remain settled; and that the money was to be refunded when Callahan asked for it. The check exceeded Callahan's indebtedness to the company by $9, or more. After Powell had cashed the check and given Callahan credit, the mercantile company made an assignment for the benefit of creditors and subsequently was thrown into bankruptcy and the assets taken over by the United States District Court in St. Louis. Defendants Campbell and Tyrell desired to purchase the stock of merchandise from the trustee in bankruptcy under an order of said court, but could do so only by consent of the creditors of the mercantile company. Collier was a creditor for quite a large amount, and the company had appropriated $75 belonging to plaintiffs. Hence plaintiffs had a demand against the company's assets to relinquish in aid of the scheme of defendants. The testimony conduces to prove Tyrell and Campbell agreed to pay the $75, if Collier would accept 62½ cents on the dollar in settlement of his demand against the mercantile company and if plaintiffs' demand, whether it was...