Killough v. Payne

• Decision Date: 02 November 1889
• Parties: KILLOUGH v. PAYNE
• Court: Arkansas Supreme Court

12 S.W. 327

52 Ark. 174

KILLOUGH v. PAYNE

Supreme Court of Arkansas

November 2, 1889

APPEAL from Cross Circuit Court, J. E. RIDDICK, Judge.

Payne sued Killough & Erwin in a justice's court, alleging that they were indebted to him in the sum of $ 26.65 for money had and received for his use and benefit from Edgar, Gage & Co. On appeal to the Circuit Court the defendants filed an answer denying that they received any sum for the use of the plaintiff. On a trial before a jury the facts proved were in substance as follows: Edgar, Gage & Co., owed W. E. Reeves $ 274 for ties furnished them, and he gave his draft on them for that amount to the defendants, Killough & Erwin. The draft was presented for payment and Edgar, Gage & Co. indorsed upon it their acceptance payable thirty days after date. When the acceptance matured, they refused to pay it because of the fact that the plaintiff, Payne, had notified them that Reeves owed him $ 26.65 for hauling some of the ties furnished and had warned them to hold that sum for him. To remove this objection to a payment of the acceptance the defendants then verbally agreed with Edgar, Gage & Co. that they would pay Payne's claim if he would get an order on them from Reeves for the amount of it. On this promise being made by the defendants, the full amount due on the draft was paid to them. At the time of this transaction, Reeves was trading with the defendants. After his dealings with them had ceased, and about seven months after the payment of the draft, Payne presented an order from Reeves on them for the amount of his claim, and they refused to pay it. The court refused to instruct the jury that if the amount collected on the draft was legally due the defendants from Edgar, Gage & Co. at the time of its payment, then the promise of defendants to pay Reeves' order was without consideration and void. The verdict and judgment were for the plaintiff and the defendants appealed.

Reversed and remanded.

N. W Norton, for appellants.

1. No acceptance, not in writing, shall be sufficient to charge any person in this State. Mansf. Dig., sec. 459.

2. The payment of an undisputed debt is not a sufficient consideration for a promise to pay another sum of money. 35 Ark. 572; 40 id., 180; 45 id., 290.

3. When an acceptance, not in writing, is tolerated at all, the order must be presented in a reasonable time. 1 Dan. Neg. Inst secs. 569, etc.; 44 Am. Dec., 253; 4 Curtis, 25; 2 Wheat 66; 33 Am. Dec., 289; 8 Porter, 263.

4. The promise being in parol was void; but if in writing, it would have been void for want of consideration, or at most, only binding for a reasonable time, 2 Wheat., 66.

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