Farris v. Pitts
Citation | 300 S.W. 840,221 Mo.App. 1204 |
Parties | FRED FARRIS, APPELLANT, v. H. SPENCER PITTS, RESPONDENT. [*] |
Decision Date | 07 November 1927 |
Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of DeKalb County.--Hon. Guy B. Park Judge.
AFFIRMED.
Judgment affirmed.
Ed G Robison, John J. Robison and Sterling P. Reynolds for appellant.
Hewitt & Hewitt and Shultz & Owen for respondent.
Trimble, P. J., absent.
This is an action for breach of contract and comes to this court after a verdict for plaintiff, and the granting of a motion for a new trial by the trial judge.
As the same time a contract was made between Arthur Donovan and H. S. Pitts, the material part of which is as follows:
The evidence shows that the contract between Arthur Donovan and H. S. Pitts was never carried out and Pitts retains the title to the farm.
The first question presented by appellant is whether or not he has a right of action against Pitts by reason of his failure to carry out the contract with Donovan, for thus only could plaintiff receive the money he claims is due him, to-wit, $ 2000.
The defendant asked the court to instruct the jury as follows, which instruction was refused:
It is the well-settled law in this State that a third party for whose benefit a contract is made, may maintain an action in his own name against the promisor on the promise. [St. Louis v. Wright Con. Co., 202 Mo. 451, 101 S.W. 6; Shockley v. Booker, 204 S.W. 569; Bank v. Commission Co., 139 Mo.App. 110, 120 S.W. 648; Bank v. Leyser, 116 Mo. 51, 22 S.W. 504; State v. R. R. Co., 125 Mo. 596; Porter v. Woods, 138 Mo. 539, 39 S.W. 794; Crow v. Stinde, 156 Mo. 262.]
It is also well settled that not every promise made by one to another, the performance of which would be of benefit to a third, would give a right of action to such third person. The test seems to be that the contract must be made for the benefit of the third person as its object, and he must be the party intended to be benefited. [Gate City National Bank v. J. S. Chick, Jr., et al., 170 Mo.App. 343, 156 S.W. 743; Porter v. Woods, 138 Mo. 539, 39 S.W. 794; Howsmon v. Water Co., 119 Mo. 304, 24 S.W. 784; Market v. Telegraph Co., 19 Mo.App. 80; Hill v. Railroad, 82 Mo.App. 188; State ex rel. v. Loomis, 88 Mo.App. 500; Scheele v. Lafayette Bank, 120 Mo.App. 611, 97 S.W. 621; Bank v. Commission Co., 139 Mo.App. 110, 120 S.W. 648.]
The evidence shows that the contract between Farris and Pitts recited that Farris was to receive $ 2000, and that the farm was sold to Donovan. There was a consideration for this contract between Farris and Pitts. A contract was immediately made between Pitts and Donovan. If this contract had been carried out, the $ 2000 mentioned in the contract between Farris and Pitts would have enured to the benefit of Farris. We think one of the objects of the contract was the benefit to Farris. It was necessary however, that Pitts and Donovan should carry out their contract before Farris could benefit. If Donovan was unable or unwilling to carry out his contract then Pitts would not be liable. If, on the other hand, the said Donovan did carry out his contract, Pitts would receive the $ 2000 due...
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