Farris v. Pitts.
| Decision Date | 07 November 1927 |
| Docket Number | No. 16094.,16094. |
| Citation | 300 S.W. 840 |
| Parties | FARRIS v. PITTS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dekalb County; Guy B. Park, Judge.
Action by Fred Farris against H. Spencer Pitts. Verdict for plaintiff. From a judgment granting defendant's motion for a new trial, plaintiff appeals. Affirmed and cause remanded.
See, also, 276 S. W. 87.
Ed. G. Robison and John J. Robison, both of Maysville, and Sterling P. Reynolds, of St. Joseph, for appellant.
Hewitt & Hewitt, of Maysville, and Shultz & Owen, of St. Joseph, for respondent.
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.
The facts are that the plaintiff, Fred Farris, had bought a piece of land from the defendant, H. Spencer Pitts. As part of the purchase price, Farris and his wife had executed a deed of trust for the sum of $18,321. Plaintiff was unable to make the payments and deeded back the land to Pitts, Pitts surrendering the notes signed by Farris and his wife. The reconveyance was by written contract in which it was recited:
"This said farm is sold for 20321 to Arther Donovan he is to assume the 18321 mortgage and pay the said Fred Farris $2,000."
At 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, $2,000.
The defendant asked the court to instruct the jury as follows, which instruction was refused "The court instructs the jury that if you find for the plaintiff in determining his damages, if any, you shall take into consideration the ability or lack of ability, if any, of Donovan to pay plaintiff the $2.000, or any part thereof, referred to in said contracts of September 4, 1923, less $525 received by plaintiff from said Donovan.
"The court instructs the jury that if you find from the evidence that the defendant was at all times ready and willing to execute a contract for deed with Donovan as called for in his contract with Donovan of September 4, 1923, then your verdict shall be for the defendant."
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 (Mo. App.) 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. Railroad Co., 125 Mo. 596, 2S S. W. 1074; Porter v. Woods, 138 Mo. 539, 39 S. W. 794; Crone v. Stinde, 156 Mo. 262, 55 S. W. 863, 56 S. W. 907. 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. loc. cit. 554. 39 S. W. 794; Howsmon v. Water Co., 119 Mo. 304. 24 S. W. 784, 23 L. R. A. 146, 41 Am. St. Rep. 654; Markel 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...
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