Meyer v. Lowell

• Decision Date: 31 August 1869
• Citation: 44 Mo. 328
• Parties: MEYER, MAY et al., Appellants, v. JOHN W. LOWELL, Respondent.
• Court: Missouri Supreme Court

44 Mo. 328

MEYER, MAY et al., Appellants,

v.JOHN W. LOWELL, Respondent.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

Vories & Vories, for appellants.

Section 38, p. 661, Gen. Stat. 1865, is not applicable to this case. Here the written assumption of the respondent is the foundation of the action and the principal thing, and the amount of the debt the incident.Woodson, and Strong & Chandler, for respondent.

I. The account sued on is not a bill of items or particulars, as required by the statute. (Gen. Stat. 1865, p. 661, § 38.)

II. Plaintiffs' petition does not state facts that will in any event authorize proof or judgment. The contract or agreement sued on is an agreement between J. W. Horr & Co. and defendant Lowell, and the plaintiffs are not parties thereto. (Manny et al. v. Frazier's Adm'r, 27 Mo. 419; Page v. Becker, 31 Mo. 466; Chitty on Cont. 55-7.)

CURRIER, Judge, delivered the opinion of the court.

The petition shows that the firm of J. W. Horr & Co. were indebted to the plaintiffs in the sum of $1,189.47; that, while thus indebted, the firm sold out its establishment to the defendant, who, in adjusting the purchase money, gave a stipulation, signed by him, the material parts of which, bearing upon the questions to be considered, are as follows: “Having purchased the stock of goods of J. W. Horr & Co., * * * I hereby assume the within account of May, Weil & Co. (the plaintiffs) so far as the same may be correct, * * * and obligate myself to pay the same, or so much thereof as I may be bound for, in six months from date.” This stipulation is indorsed on the back of the plaintiffs' account against said Horr & Co., which shows the aggregates or balances against them for different sales of merchandise, sixteen in all, amounting to the said sum of $1,189.47.

The petition counts on this stipulation as an agreement on the part of the defendant to pay the plaintiffs the amount of Horr & Co.'s indebtedness to them, subject to the conditions set out in the agreement.

At the trial, all evidence tending to establish the correctness of the account referred to in the stipulation was excluded upon the ground that no copy of the account, as contemplated by the statute (Gen. Stat. 1865, p. 661, § 38), was filed with the petition, or the items thereof set out in the pleading. The account itself, however, was filed with the petition--that is, the account referred to in the defendant's stipulation--and that must be deemed sufficient for the purposes of this action, which is not founded upon the account, but upon the defendant's written contract. The court was therefore wrong in excluding the evidence in question.

The more difficult question raised in the cause relates to the sufficiency of the petition. It is objected that it does not state facts sufficient to constitute a cause of action, in the plaintiffs' name and favor, against the defendant. And this starts the inquiry whether the plaintiffs were in such sense strangers to the consideration of the contract as to preclude them from suing thereon in their own names.

The decisions on this subject have not been uniform--the more ancient rulings, in like cases, inclining against the right thus to sue; while the more modern, and especially the American, cases lean in its favor. Parsons states the matter thus: “In some cases in which the consideration did not pass directly from a plaintiff, and the promise was not made directly to him, it has been made a question how far he might avail himself of it, and bring an action in his name, instead of the name of the party from whom the consideration moved, and to whom the promise was made. It seems to have been anciently held as a rule of law (though not uniformly so) that...