McPherson v. Meek

• Decision Date: 31 July 1860
• Citation: 30 Mo. 345
• Parties: MCPHERSON, Defendant in Error, v. MEEK, Plaintiff in Error.
• Court: Missouri Supreme Court

30 Mo. 345

MCPHERSON, Defendant in Error,

v.MEEK, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1860.

1. To constitute a bond signed by a person a valid bond against him, it must be shown to have been delivered to the obligee.

2. Where a person, alleging that he had as surety for another paid a bond in which the latter was principal, seeks to recover the sum so paid of the alleged principal, he must show that he became a party in the character of surety at the instance of the alleged principal, or that the latter assented to it, unless this fact appear from the instrument itself.

3. Nothing can be set up as a counter-claim, which is not a cause of action, a cross demand, and that does not contain the substance necessary to sustain action by defendant against the plaintiff, if the plaintiff had not sued the defendant.

Error to De Kalb Circuit Court.

The facts sufficiently appear in the opinion of the court.

Shambaugh, for plaintiff in error.

I. The court erred in striking out that part of the answer relating to the non-delivery of the bond. If after defendant had signed the bond, he declined giving the same, and plaintiff afterwards, contrary to defendant's direction, delivered the bond to the county, plaintiff can not recover the amount he paid on the bond. So also the court erred in striking out that portion of the answer charging that plaintiff signed the bond as security without the knowledge or consent of the defendant. (2 Greenl. Ev. p. 93; 19 Mo. 170.) So also in striking out the defence of fraud. If the plaintiff fraudulently procured defendant's signature to the bond for the purpose of paying a debt due by plaintiff to the county, instead of a debt due by defendant, as intended by defendant, he can not recover. The court improperly struck out the defence of mistake. The defences are not inconsistent. Even if they were, a motion to strike out was not the proper remedy. Such an objection applies to the whole answer. The proper remedy is a motion to compel the defendant to elect. The court erred in striking out defendant's set-off. The fact that the amount claimed was due from plaintiff and another does not deprive defendant of the privilege of using it as a set-off when sued by plaintiff alone. (Whaley v. Cope, 4 Mo. 233; 8 Mo. 309; 24 Mo. 306.) The defendant could have maintained an action for the debt against plaintiff alone. (4 Mo. 233.)

EWING, Judge, delivered the opinion of the court.

This was a suit to recover the sum of $161.94, which plaintiff alleges he paid for the defendant as his security on a bond executed by them, (defendant being principal,) with one Hudson, to the county of DeKalb for the use of the road and canal fund. The petition alleges that the bond bore date January 4, 1858, and was for $142.14, payable in twelve months; and that, defendant making default, plaintiff paid said sum with interest January 19, 1859.

The answer denied the execution of the bond as charged, and that plaintiff paid the sum claimed; admitted that the defendant signed the bond, but denied the delivery of it; and alleges that the bond was signed by plaintiff as surety without the knowledge or consent of defendant, and was delivered by plaintiff contrary to defendant's direction; charges that plaintiff fraudulently procured defendant's signature to the bond for the purpose of paying a debt owing by plaintiff to said county, instead of paying a debt due by defendant to said county, as intended by defendant; also that defendant signed the bond under a mistake as to the purpose of giving the same, and that plaintiff afterwards, contrary to the direction of the defendant, fraudulently delivered the bond to said county in payment of a debt due from plaintiff to the county. The defendant also pleaded a set-off due him from plaintiff, and also a counter claim, as the answer terms it, of $96.50 against the firm of McPherson & Harvey, of which plaintiff was a member.

That part of the answer setting up the non-delivery of the bond is a good defence to the action, and should not have been struck out. The answer avers that the bond was never delivered by the defendant as his act, nor by any one authorized by him, and that it was delivered by the plaintiff to the county court without his knowledge or consent. If these...