Fitzgerald v. Barker

• Citation: 85 Mo. 13
• Parties: FITZGERALD v. BARKER, Appellant.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

85 Mo. 13

FITZGERALD

v.BARKER, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Taylor & Pollard for appellant.

(1) The non-suit was right, because the promise of Barker was not made for the benefit of Fitzd. He never had seen nor heard of these notes until long after Barker's deed had been delivered. Nothing was owned or held by Fitzgerald at the delivery of Barker's deed, to which the latter's promise could possibly attach in his favor. In cases like this the action accrues only to the person for whose benefit the promise was made. Robbins v. Ayres, 10 Mo. 538; Rogers v. Gosnell, 51 Mo. 466; Hannegan v. Hutchinson, 47 Mo. 237; Fitzgerald v. Barker, 4 Mo. App. 107; S. C. 70 Mo. 685; Mansur v. Bartholow, 8 Cent. L. J. 72. (2) To give a party who may derive a benefit from the performance of the promise an action, there must be first an intent by promisee to secure some benefit to said third party; and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty. Vrooman v. Turner, 69 N. Y. 280. (3) The promise of defendant having been made for the benefit of Rubelmann, if anyone, the plaintiff cannot maintain an action upon such promise, without an assignment thereof to him. See cases cited under first point. (4) If the notes offered in evidence are the same as those mentioned in the deed to Barker, and Rubelmann, after the delivery of Barker's deed, endorsed and delivered the notes in question to plaintiff, that alone would not have transferred to him any right of action against Barker. Nothing but an assignment of this covenant to plaintiff would give him a right of action thereon. (5) If, as a fact, no notes had been issued, and the recitals that they had were false, then no person could reap the benefit of defendant's promise, because there was nothing to which it could attach. Goodman v. Randall, 44 Conn. 321; King v. Whiley, 10 Paige 416. (6) There was a material variance between the allegations of the petition, and the evidence offered by plaintiff to sustain his cause. The variance consisted in this: It is alleged that the notes were held and owned by plaintiff at the time Barker's deed was executed, and it is also alleged that the notes assumed by Barker were executed by John S. Thomas. The evidence is absolute that no such notes were owned by plaintiff at the time alleged. Moreover, the covenant of Barker was to assume and pay certain notes executed by John R. Thomas, not John S. Thomas.

Edward White for respondent.

(1) The circuit court was not warranted in assuming that plaintiff acquired the title to the notes after the execution of the deed from Thomas to Barker. This was a question of fact which should have been left to the jury, under proper instructions, if it was material. (2) But it was wholly immaterial whether plaintiff acquired the title before, or after the promise by Barker to pay the notes. The notes were negotiable, and Barker's obligation attached to them and passed with them to plaintiff, it being clear from the evidence that he received them before maturity. (3) No doctrine is now more firmly established than that, where a promise is made by one person to another, for a valuable consideration, to pay his debt to a third, such third person may sue on the promise in his own name. Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hutchison, 47 Mo. 237; Rogers v. Gosnell, 51 Mo. 466; Schuster v. K. C., St. J. & C. B. R. R., 60 Mo. 290; Fitzgerald v. Barker, 70 Mo. 685; Lawrence v. Fox, 20 N. Y. 268; Campbell v. Smith, 71 N. Y. 26; Hand v. Kennedy et al., 83 N. Y. 149. (4) And where the promise is a general one to pay debts, the creditor may recover, even though, at the time the promise was made, the promisor was not aware of the existence of the debt, or was deceived with reference to it by the promisee, or did not know the name of the creditor. Raum v. Kaltwasser, 4 Mo. App. 573; Cross v. Truesdale, 28 Ind. 44; Kingsbury v. Earle, 27 Hun. 141. (5) In this case, the promise was not to pay any particular creditor named in the deed, but to pay certain negotiable notes, which were sufficiently described in the deed for identification. The promise was, therefore, clearly made for the benefit of the holder of the notes at their maturity. It must be presumed that such was the intent of both the promisor and the promisee. (6) Though, at the time a promise is made, no individual is either named or known as the beneficiary, yet, if the promise is to take effect in the future, and when the time of performance arrives, there is but one person who can fill the description of the person or class intended to be benefited, he must be taken to be the one originally intended. Fitzgerald v. Barker, 13 Mo. App. 192. (7) The fact that the deed of trust, by which the notes in question were secured, recited that the notes were executed in satisfaction of an indebtedness due to one Rubelmann, is wholly immaterial. The promise was not to pay Rubelmann, nor to pay off the deed of trust, but to pay the notes. The notes were negotiable, and passed by delivery. They passed directly from Thomas, the maker, to the plaintiff, and were never in the possession of Rubelmann. The deed of trust was a mere incident, and was offered in evidence only to identify the notes. Plaintiff was not bound by its recitals. (8) Barker's promise was not a promise to pay the debt of another, but a promise to pay his own debt for the land, and to do this by paying off the notes executed by Thomas. Hand v. Kennedy et al., 83 N. Y. 154.

SHERWOOD, J.

This cause has been before us on a former occasion, 70 Mo. 685. It was then ruled, in affirmance of the judgment of the St. Louis court of appeals, that if a purchaser accepts and holds under a conveyance which contains a clause reciting that he has assumed and agrees to pay a note secured by a subsisting mortgage on the land, he thereby subjects himself to a liability which the holder of the note may enforce by a personal action. The cause came up here upon the sufficiency of the petition, which was adjudged sufficient Since that time, the cause was heard in the circuit court where, at the close of plaintiff's case, the court instructed the jury that the plaintiff could not recover, whereupon he took a non-suit, etc. The petition upon which the cause was tried is the same as was adjudged sufficient in this court, and is substantially as follows: That on the second day of November, 1872, John S. Thomas and wife, by their deed of that date, conveyed to John Barker certain real estate situated in the city of St. Louis; that, by said deed, Thomas covenanted to warrant and defend the title to said property against the claims of all persons, except against certain deed of trust notes on said property, to-wit: two notes of two thousand dollars each, payable two years after date; and eight interest notes for one hundred dollars each, payable respectively at six, twelve, eighteen and twenty-four months after date--all of said notes being made by said John S. Thomas, and payable to his own order, which notes said Barker assumed and agreed to pay, said assumption and agreement being duly incorporated in said deed from Thomas to Barker; that at the date of the said deed, the plaintiff was the holder and owner of one of the said two thousand dollar notes, and the four interest notes thereon, payable respectively in six, twelve, eighteen and twenty-four months; that defendant accepted said deed and entered into possession of said property, and thereby, and by reason of said assumption and agreement, became liable to pay the said several notes to plaintiff as the holder thereof; that the first of the said interest notes was duly paid by defendant to plaintiff, at its maturity, but that the remaining notes were never paid. The prayer of the petition was for judgment against the defendant for the amount of said principal note, two thousand dollars, and said...