Kratz v. Stocke

• Decision Date: 31 March 1868
• Parties: HENRY KRATZ, Respondent, v. VALENTINE STOCKE and JOHN FAUDI, Appellants.
• Court: Missouri Supreme Court

42 Mo. 351

HENRY KRATZ, Respondent,

v.VALENTINE STOCKE and JOHN FAUDI, Appellants.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Circuit Court.

Defendants asked the following among other instructions, which were refused by the court:

1. If the jury believe and find from the evidence that the consideration for the making and indorsing of the note sued upon was the transferring by the plaintiff to the defendants of a bargain or agreement had by the plaintiff and one Henry Shenkel with Mrs. Elizabeth Timmerman, for the purchase and sale of the interest of her deceased husband in and to the Star mills, as set out in plaintiff's reply to defendants' answer; and that said bargain or agreement was a mere verbal contract between Mrs. Timmerman and the plaintiff, or plaintiff and Shenkel, and which was not, nor a memorandum thereof, reduced to writing and signed, so as to make the same a valid and binding contract, within the statute of frauds, upon the parties, then there was no valid consideration in law for the making and indorsing of said note, and the plaintiff cannot recover in the action.

2. The transferring to another a bargain for the purchase of lands, or interest in or concerning the same, is not a good consideration of a note for the payment of money.

3. Unless the alleged sale of the Star mills to plaintiff and Shenkel, as averred in the pleading of the plaintiff, was an actual sale thereof, or a contract for sale, on the part of Mrs. Timmerman, binding upon her by reason of there having been a compliance with the statute of frauds--that is to say, by reason of there having been an agreement for such sale, or some memorandum or note thereof in writing, and signed by her or by her lawful authority--then there was no good consideration for the making and indorsing of the note sued on, and thereupon the plaintiff cannot recover on the note sued on.

4. Unless the sale to plaintiff and Shenkel of the Star mills by Mrs. Timmerman, as averred in the plaintiff's petition, was an executed sale, or an agreement for sale, valid and binding on Mrs. Timmerman, then the plaintiff cannot recover; and the court instructs the jury that there is no evidence in the cause rebutting defendants' evidence that there was no such sale or valid agreement for such sale; and if the jury believe the whole evidence in the cause upon this point, the plaintiff cannot recover.

The court gave one instruction at the instance of the plaintiff, containing simply the converse of the proposition sought to be maintained in the defendants' instructions.

The facts appear sufficiently in the opinion of the court.Jecko & Clover, for appellants.

I. The transferring to another a bargain for the purchase of lands, or interest in or concerning the same, is not a good consideration for a note for the payment of money. (Chit. on Cont. 43; Price v. Seaman, 7 Dowl. & Ryl. 14; 4 Barn. & Cres. 525; 2 Bing. 487; 10 Moore, 37; Ehle v. Judson, 24 Wend. 97.) A merely moral or conscientious obligation, unconnected with any prior or equitable claim, is not enough to support the promise. (3 Bos. & Pull. 249, n.; Smith v. Ware, 13 Johns. 257; Lowe's Plead. Assump. 54; 16 Johns. 283, n.)

Lazar & Madill, for respondent.

I. Defendants cannot, in this case, resort to the statute of frauds to establish a want of consideration, inasmuch as they did not plead it in bar of the action. (Wildbahn v. Robidoux, 11 Mo. 659; 28 Cal. 632; 2 Story's Eq. Jur. § 756-7.)

II. But admitting that they might avail themselves of the statute, although they have failed to plead it, they cannot now invoke its aid. If the promise of the plaintiff, which was to form the consideration of defendants' note, was, when made, within the statute of frauds, it has been taken out of its operation by its having been fully executed. (Suggett's Adm'r v. Cason's Adm'r, 26 Mo. 221; Lobdell v. Lobdell, 36 N. Y. 331; Abbot v. Draper, 4 Denio, 51; Thomas v. Dickinson, 12 N. Y. 364.)

III. Plaintiff agreed to abandon his claim in favor of the defendants and endeavor to procure their substitution as purchasers. He kept his agreement, abandoned his contract of purchase in favor of the defendants, procured their acceptance as purchasers, gave up the opportunity to reimburse himself for the expense he had been to in closing up his business by accepting this property. This was an injury to him, and, with his efforts in procuring the substitution of the defendants as purchasers, constitutes a sufficient consideration to support the notes given by the defendants. (33 Barb. 294; 8 Mo. 675; 38 Mo. 147; 2 Watts, 104.)

Even if the note was given in consideration of the sale of a parol agreement for an interest in land, still the weight of authority is decidedly against the defense relied on. (Hardwick v. Blanchard, Gow's R. 109; Seaman v. Price, 10 Moore, 34; 2 Edw. Ch. 514; Trask v. Vinson, 20 Pick. 105, 111; Abell v. Douglass, 4 Denio, 305, 311; Horner v. Wood, 15 Barb. 371; Hasford v. Carter, 10 Abbott, 432; Sandford v. Morris, 34 N. Y. 315.) In the case of Ehle v. Judson, 24 Wend. 97, the plaintiff's assignor had made no parol contract for the purchase of the farm of Blatherwick, so that there was not even an obligation of honor resting upon Blatherwick to convey the same. The plaintiff's assignor was to do nothing after the making of the agreement, whereas in the case at bar the plaintiff was to assist in procuring the defendants' substitution as purchasers in his stead. The consideration of the note in the case referred to was the time and trouble expended by the plaintiff's assignor prior to its execution. It was exclusively an executed one, whereas in the case at bar the plaintiff was, after the execution, still to render and did render valuable services.

WAGNER, Judge, delivered the opinion of the court.

This action was brought upon a promissory note for one thousand dollars, made by the defendant, Stocke, payable to the order of defendant, Faudi, and indorsed by the latter. The answer admits the execution and indorsement of the note, and its delivery to and ownership by the plaintiff, but alleges that it was procured by the fraud and misrepresentation of the plaintiff, and that it had no consideration to support it. The reply traverses these allegations of fraud and want of consideration, and sets forth in full the transactions out of which the note sprang.

The facts seem to be briefly these: The defendant, Stocke, and one Jacob Timmerman were copartners, and, as such, were the owners of a certain leasehold, situated in the city of St. Louis, whereon was erected a flouring mill, known as the Star mills. Timmerman died, and his wife administered on the estate, and by an order of the Probate Court she was authorized to sell the mill at private sale. The agent of the administratrix entered into negotiations with plaintiffs for the sale of the mill, concluded a contract and fixed upon a price, and gave orders to the attorney for the administratrix to draw up a conveyance to be executed by her. The agreement was wholly verbal, no writing having passed between the parties. Subsequently the defendants, ascertaining that plaintiff had purchased the property, were anxious to procure the same, and after considerable negotiations agreed to give him two thousand dollars if he would permit the defendants to become the purchasers and use his influence to secure their substitution, and allow the conveyance to be made to them instead of the plaintiff. This was finally agreed to, and the defendants executed two promissory notes for one thousand dollars each, one of which notes is the foundation of this suit.^a1 The agent was then notified of the transaction and requested to accept the defendants instead of the plaintiff, and the sale was carried out in pursuance of this arrangement, and the property conveyed to the defendants by the administratrix.

There does not appear to be anything to support the allegation that the note was procured by fraud and misrepresentation, and the main point relied on by the counsel for the plaintiff is that the original contract or agreement for the purchase of the property by the plaintiff from the administratrix, not being in writing, was void by the statute of frauds, and therefore furnishes no consideration to support the promise of the defendants. An assignment of a debt or a right is a good consideration for a promise by the assignee. The validity of the transfer will always be upheld if the assignee obtains a benefit which the law considers a sufficient and proper consideration to found a promise upon.

An injury to the party to whom the promise is made, or a benefit to the party promising, has been universally held a sufficient consideration. Mr. Chitty, in speaking on the subject, says that the...