Moore v. Kansas City, S. & M. R. Co.

• Decision Date: 10 May 1888
• Citation: 31 Mo.App. 145
• Parties: F. W. MOORE, Appellant, v. KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY, Respondent.
• Court: Kansas Court of Appeals

31 Mo.App. 145

F. W. MOORE, Appellant, v. KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY, Respondent.

Court of Appeals of Missouri, Kansas City.

May 10, 1888

Appeal from Dallas Circuit Court, HON. W. I. WALLACE, Judge.

Affirmed.

The case is stated in the opinion.

R. W FYAN, for the appellant.

I. It was error to instruct the jury to find and return a verdict for defendant. The case was not within the statute of frauds. The defendant railroad company was indebted to Strang &amp Son at the time it promised to pay plaintiff (Moore), and in promising to pay Moore it extinguished a debt which it owed Strang & Son, and the promise made by the defendant to pay plaintiff was a direct undertaking of the debtor to pay his own debt and the case was not within the statute of frauds. Hall v. Dollarhide, 61 Mo. 433; Flanagan v. Hutchison, 47 Mo. 237; Sinclair v Bradley, 52 Mo. 180. " This rule, however, seems to be well established and rests on solid ground, namely, that when one undertakes to pay the debt of another and by the same act also pays his own debt which was the motive of the promise, the undertaking is not within the statute and need not be in writing. In such a case the promise of the party is rather to pay his own debt than an undertaking to pay the debt of another." Besshears v. Rowe, 46 Mo 503.

II. When the promise arises out of some new consideration of benefit or harm moving between the newly contracting parties, the case is not within the statute of frauds at all, and may rest in parol as in ordinary cases. Farley v. Cleveland, 4 Cowen [N. Y.] 435. " If the promise springs out of any new transaction or moves to the party promising upon some fresh and substantial ground of a personal concern to himself, it is not within the statute." Roberts on Frauds, 232.

III. When there are facts established from which the jury may reasonably draw legitimate inferences tending to sustain an issue, the court should not interfere, and if there is any evidence, however slight, tending to sustain the allegations of the petition, the court should not take the case from the jury. Kelley v. Railroad, 70 Mo. 604; Moody v. Deutsch, 35 Mo. 243; Emmerson & Childs v. Sturgeon, 18 Mo. 170; Hay v. Bell, 16 Mo. 496; Smith v. Hutchison, 83 Mo. 683.

C. B. MCAFEE, for the respondent.

I. The alleged promise of George H. Nettleton (even if the testimony of plaintiff proves a promise at all) is the promise to pay the debt of another, not in writing, and is within the statute of frauds and the instruction was properly given for this reason. Bissey v. Britton, 59 Mo. 204; Glenn v. Lehnen, 54 Mo. 45; Parker v. Scudder, 56 Mo. 272; Walther v. Merril, 6 Mo.App. 36; Green v. Estis, 87 Mo. 337; Petit v. Braken, 55 Ind. 201; Furbish v. Goodnow, 98 Mass. 296; Kruts v. Stewart, 54 Ind. 178; Braston v. Henderson, 44 Md. 607; Thomas v. Delphy, 33 Md. 373; Duffy v. Wunsch, 42 N.Y. 243.

II. The allegations of the petition, denied by the answer, are that defendant was largely indebted to Strang and that Strang was indebted to plaintiff $1, 242.31, and that defendant promised to pay this sum to plaintiff out of what it owed Strang, and in pursuance of this promise did pay nine hundred dollars, but refused to pay the balance. There is no evidence whatever that defendant owed Strang at all, but on the contrary it was proven by plaintiff's own witness, Ford, and by Gen. Nettleton, president of the defendant, and not contradicted, that defendant did not owe Strang at all. It was proven by Ford, plaintiff's own witness, and by other testimony on part of plaintiff, that the nine hundred dollars was paid on the written contract of July 6, and not upon the pretended verbal agreement of July 12. There is no evidence to sustain the allegation of the petition and the instruction was properly given for this reason. State to use v. Roberts, 82 Mo. 388; Charles v. Patch, 87 Mo. 462, 463; Nolan v. Shickle, 3 Mo.App. 300.

III. The law always requires promises to pay other people's debts proven clearly and precisely even when not within the statute. This, at most, could only be an implied promise, and plaintiff's own evidence, when taken as strongly against him as required by the rule, does not show an implied promise. Walther v. Merril, 6 Mo.App. 38.

IV. On the twelfth of July when the pretended promise upon which plaintiff sues was made, Strang and the defendant had fully made and consummated their settlement and neither owed the other anything, and there is no pretense that any sum or other consideration passed to defendant to uphold the promise even if ever so solemnly and precisely made. Besides, the promise is claimed to have been made to the creditor Moore and not to the debtor Strang. See authorities cited above; Walther v. Merril, 6 Mo.App. 38.

V. The petition counts upon a novation, but there is a failure of proof. The allegation of indebtedness on part of defendant to Strang is disproved by himself on the trial. The promise pleaded is not proved as alleged. And no promise at all is proven as alleged. The petition is not based at all upon the alleged promise of July 12. And there is no evidence to sustain the allegation of the petition, and the instruction was properly given for this reason. See authorities cited. The appellant has cited, Hall v. Dollarhide, 61 Mo. 433; Flannagan v Hutchinson, 47 Mo. 237; Sinclair v. Bradley, 52 Mo. 180; Bershears v. Rowe, 46 Mo. 593; Farley v. Cleveland, 4 Cowen 435. These five cases are all of the same character, and are decided upon precisely the same principle, and the doctrine of these cases is not controverted by the respondent. The...