Fitzgerald v. Barker

• Decision Date: 22 May 1877
• Parties: JOHN FITZGERALD, Appellant, v. JOHN BARKER, Respondent.
• Court: Missouri Court of Appeals

4 Mo.App. 105

JOHN FITZGERALD, Appellant,

v.JOHN BARKER, Respondent.

St. Louis Court of Appeals, Missouri.

May 22, 1877.

Where a mortgage or conveys real estate, and the conveyance contains a statement that the grantee will assume and pay the note which the mortgage is given to secure, and the grantee accepts the same and enters into possession of the premises, he becomes directly and personally liable to the holder of the note and mortgage for the amount due.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

JOHN G. CHANDLER, for appellant: A third party may bring an action on a promise made for his benefit by another.-- Robbins v. Ayers, 10 Mo. 538; Meyer v. Lovell, 44 Mo. 328; Rogers v. Gosnell, 51 Mo. 466; 58 Mo. 589; Schuster v. Kansas City, etc., R. Co., 60 Mo. 290. Liability of the purchaser of mortgaged property to discharge the encumbrance, under stipulation in the deed.-- Richardson v. Sanderson, 41 N. Y. 179; Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Marsh v. Pike, 10 Paige, 595.

BAKEWELL, J., delivered the opinion of the court.

The petition of plaintiff states that one Thomas, by deed of November 2, 1872, conveyed to defendant certain real estate, with general warranty, except against a deed of trust on the same property given by Thomas to secure certain notes made by him. These notes are two principal notes of $2,000 each, payable two years after date, and interest notes, all dated November 1, 1872, and payable to the order of Thomas, the maker. The petition further states that defendant assumed and agreed to pay these notes, which assumption and agreement were incorporated in the deed from Thomas to defendant; that plaintiff, at the date of said deed, was the holder and owner of one of said principal notes of $2,000, and of the four interest notes payable thereon, which notes are fully described; that defendant accepted said deed, and entered into possession thereunder, by reason of all which he became and is liable to pay to plaintiff the last-described notes, which plaintiff holds and owns; that defendant paid to plaintiff the first-maturing interest note, but that the remaining notes remain unpaid and are due. Plaintiff asks judgment for the amount of the notes held and owned by him, and interest and costs.

Defendant demurred, and for grounds of demurrer alleged:

1. That there is no consideration for the alleged promise moving from plaintiff to defendant.

2. That there is no privity of contract as between plaintiff and defendant.

The demurrer was sustained; plaintiff declined further to plead, and there was judgment for defendant; and plaintiff appeals.

It is now the prevailing rule in this country that a third party may bring an action on a promise made to another for his benefit; and it is often said that such a promise is to be considered as made to the third party, if adopted by him, though not cognizant of it when made. 1 Pars. on Con. 466, sec. 15. This rule was long ago established in Missouri. In Robbins v. Ayers, 10 Mo. 538, defendant bought a boat, and, as part of the consideration, agreed to pay $600 due the hands. It was held that the hands might sue in their own names, as the contract was not under seal. In Meyer v. Lowell, 44 Mo. 328, Lowell bought out Howell & Co.,...