Glenn v. Lehnen

• Citation: 54 Mo. 45
• Parties: JOSEPH GLENN AND WILLIAM GLENN, Respondents, v. DANIEL LEHNEN, Appellant.
• Decision Date: 31 October 1873
• Court: United States State Supreme Court of Missouri

54 Mo. 45

JOSEPH GLENN AND WILLIAM GLENN, Respondents,

v.DANIEL LEHNEN, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Montgomery Circuit Court.

L. Carkener, for Appellant.

I. To enable plaintiff to recover, the exclusive credit must have been given to defendant. (Matson vs. Wharam, 2 T. R. 80; Chit. Cont. 507, 510; Rob. Frauds, 208; Brown, Stat. of Frauds, §§ 197, 198; Cahill vs. Bigelow, 18 Pick, 369; Cutler vs. Hinton, 6 Rand., 509; Elder vs. Warfield, 7 Har. & J., 391; 1 McCord, 100; Rogers vs. Kneeland, 13 Wend., 121; Leonard vs. Verdenburg, 8 Johns., 37.)

II. The idea that because a promise is made before the sale or delivery, it is therefore an “original” one, is exploded. (Story Cont., § 861; Matson vs. Wharam, supra; Chit. Cont., supra; Mathews vs. Milton, 4 Yerger, 576; Leland vs. Creyon, 1 McCord, 100.)

M. Kinealy, with J. M. Barker, for Respondents.

I. Plaintiffs delivered the property to Clarkson solely on the faith and credit of defendant's parol promise “to be responsible for the price or to see it paid.” They are entitled to recover. This was the fact, and is the law of the case (Proprietors, &c. vs. Abbott, 14 N. H., 157; Arbuckle vs. Hawks, 20 Vt., 538; Perley vs. Spring, 12 Mass., 297.)

II. The promise of defendant was not within the statute, for the reason that there was no debt at the time to which the promise could be collateral. (Mallory vs. Gillett, 21 N. Y., 412.)

VORIES, Judge, delivered the opinion of the court.

This action was brought by the respondents against the appellant before a justice of the peace.

The action was brought on an account for the price of a steer, which was stated to be $53.55, but which had been reduced by payments credited thereon, so that the balance claimed was $26.85.

The plaintiffs recovered a judgment before the justice for the amount claimed. From this judgment the defendant appealed to the Montgomery Circuit Court, where judgment was again rendered against him.

On the trial in the Circuit Court, the plaintiff, Joseph Glenn, was examined as a witness on the part of the plaintiffs, and testified, that some time previous to the first of May, 1871, one Jesse B. Clarkson came to him, and wished to buy the steer mentioned in the account sued on; that he offered to sell Clarkson the steer for 5 and 1-4 cents per pound; that Clarkson desired to purchase the steer on time, and pay for him after he had been butchered and sold. This was refused, and Clarkson was told that he must either pay cash or give security. A short time after this, Clarkson returned and said he had made arrangements to secure the money, and wanted the steer; but he did not take the steer at that time, but returned the third time and told plaintiff, that Mr. Lehnen (the defendant) had agreed to become his surety for the payment of the money, after which the steer was driven up and put in plaintiff's lot.

This evidence on the part of plaintiffs of the conversation with, and statements of, Clarkson, was objected to at the time by defendant, on the ground, that Clarkson was no party to the suit, and his statements and contracts were not admissible in evidence against defendant, and that said evidence was irrelevant and incompetent.

The court overruled the defendant's objection, and admitted the evidence, and the defendant excepted.

The witness then proceeded to state, that Clarkson told him that Lehnen wished to see him at his house about the steer; that witness then went to Lehnen's house; that the first thing said to witness by Lehnen was: “I want to see about buying that steer.” Witness asked him “what about it?” He said he wanted Clarkson to get the steer, as Clarkson was going to butcher some Texas cattle that he (Lehnen) had, that were not then fit to kill, and that he wanted Clarkson to get something to commence on to prevent another butcher from getting the control of the market. Witness then told him “if he would see the money paid, Clarkson could have it; but that he could not have it on his own responsibility. He said “all right, let him have it, and I will see it paid for.”

The witness further testified, that, after this conversation with defendant, the steer was delivered to Clarkson, or taken from the lot and taken to the stock-yard to be weighed, and that defendant came to the stock-yard and assisted in weighing the steer and taking him off; that something was said by defendant at his house about his never signing a note for any one, when witness told him he did not want him to sign a note, that his word was sufficient.

On cross-examination, witness was asked by the defendant “whether in the conversation with Lehnen at the house of the latter anything was said about when, where, or to whom, the steer was to be delivered?” The witness refused to answer the question further than to say, that he had told all he had to tell about it, and had told all he knew about it.

The defendant's counsel asked the court to require the witness to answer the question; but the court refused so to do, to which ruling the defendant excepted.

The witness stated, that he had collected part of the price of the steer from Clarkson; but that he did so at defendant's request.

William Glenn, the other plaintiff in the case, was also examined as a witness. On his cross-examination he stated that he knew nothing about the contract with Lehnen, except what his brother, Joseph Glenn, had told him; that he was present, and testified on the trial before the justice of the peace. Witness was then asked, whether he did not, in his testimony on such trial, state; that “it was his understanding, that Jesse B. Clarkson bought the steer, and that the defendant became his security for the price of the same.”

The plaintiffs' counsel objected to the question on the ground, that as the witness did not know of his own knowledge what the contract was, the evidence was hearsay and incompetent. The objection was sustained by the court, and: the question excluded, to which the defendant at the time excepted.

The defendant was examined as a witness in his own behalf, and contradicted in direct terms the evidence of plaintiff in reference to the contract or agreement by him to pay for the steer; denied that he ever agreed to become liable for the steer, either as Clarkson's surety or otherwise; but said, that he had positively refused to become so liable; admitted, that he had told Joseph Glenn, that he was purchasing hides of Clarkson and sometimes traded with him, and that, if he could assist plaintiffs in any way in collecting the price of the steer from Clarkson, he would do so.

The defendant introduced other evidence tending to prove, that the steer had been sold to Clarkson, and that plaintiffs had purchased beef of Clarkson at different times at his butcher shop, and had credited the account for the price of the beef on their account for the steer.

After the close of the evidence the court instructed the jury as follows First--“If the jury believe from the evidence, that the steer was delivered on defendant's promise alone to pay therefor, then the promise was not collateral, but original, and not within the statute of frauds, and they will find for the plaintiffs:” Second--“If the jury find from the evidence in the cause, that the sale of the steer in question was made by plaintiffs to Clarkson, and the animal delivered in accordance with such sale, no subsequent agreement or understanding by defendant, not in writing, to be responsible for the price of said steer, is binding on defendant.” Third--“If the jury find from the evidence in the cause, that plaintiff sold the steer to Clarkson, and let him have the steer on his own credit and responsibility, a verbal promise by defendant to be responsible for said steer, if such were made, is not binding in law on defendant, and the verdict should be for the defendant:” Fourth--“If the jury believe from the evidence in the cause, that Clarkson offered to buy the steer in question, of plaintiffs, at a certain price, and that plaintiffs declined to sell the same unless paid for or secured, and that before the offer aforesaid was accepted, defendant promised plaintiffs to be responsible for the price of said steer, and that the steer was afterwards delivered to Clarkson in defendant's presence on the faith of said promise of defendant, and without such promise plaintiffs would not have let said Clarkson have said steer, then the jury should find for the plaintiffs:” Fifth--“If on the other hand, the jury believe from the evidence in the cause, that the plaintiffs let said Clarkson, upon his offer to buy, have said steer without any previous promise by the defendant to plaintiffs, or either of them, to pay, or to be responsible for, the price of said steer, or to see it paid, and without any other promise or assurance to plaintiffs, or either of them, than that he would help plaintiffs to get the price of said steer from said Clarkson in case they let him have the steer, then the verdict should be for the defendant.”

The defendant at the time objected to each of these instructions; but the court overruled said objections, and gave the instructions, and the defendant excepted.

The defendant then asked the court to instruct the jury as follows: First-- “Unless the jury believe from the evidence, that the plaintiffs sold the steer, mentioned in the account sued upon, to the defendant, the plaintiffs cannot recover:” Second--“If the jury find from the evidence, that the plaintiffs sold the steer to Jesse B. Clarkson, and that defendant promised to be security for the...