Moore v. McHaney
| Citation | 178 S.W. 258,191 Mo.App. 686 |
| Parties | C. F. MOORE, Respondent, v. J. F. McHANEY, Appellant |
| Decision Date | 02 July 1915 |
| Court | Missouri Court of Appeals |
Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.
REVERSED AND REMANDED.
John T McKay for appellant.
(1) The verdict of the jury in this case is against the evidence, the weight of the evidence and is for the wrong party, and the cause ought to be reversed. There was no evidence to go to the jury. State ex rel., Savings Trust Co. v Hallen, 165 Mo.App. 422; Dutcher v. Railroad, 241 Mo. 137. (2) The court erred in overruling defendant's demurrer to plaintiff's petition, filed in the justice's court, and permitting plaintiff to amend his petition, so as to set up a cause of action if any, which appellant denies, when no cause of action had been previously stated in the lower court. The circuit court, on appeal from the justice's court, has no greater jurisdiction than the justice had, and in this cause the petition filed in the justice's court failed to state facts sufficient to constitute any cause of action against appellant and the circuit court had no jurisdiction whatever. Planing Mill Co. v. Short, 58 Mo.App. 320; Barhydt & Co. v Alexander & Co., 59 Mo.App. 188; McCann v Sawyer, 59 Mo.App. 480; Reinhardt v. Kempf, 72 Mo.App. 646; Kellogg v. Linger, 60 Mo.App. 578. (3) The court erred in refusing appellant's instruction number five, which was in the nature of a demurrer and given at the close of all the testimony. The testimony in this cause clearly showed that this was a collateral undertaking to pay the debt of another and was not in writing and was, therefore, void under the Statute of Frauds. If there was any agreement on the part of appellant concerning the note in controversy it was collateral to that of the principal contractor, Hodge, and would have had to have been in writing to be binding on appellant and if it had been in writing it would have had to have a new consideration, as it was made, if at all, after the original contract had been fully executed, and as the evidence fails to disclose any, it is void, under the Statute of Frauds. Bessig v. Britton, 59 Mo. 204; Hurt v. Ford, 142 Mo. 283; Gansey v. Orr, 173 Mo. 546; Moore v. Railroad 31 Mo.App. 145; Musick v. Musick, 7 Mo. 495; Peck v. Harris, 57 Mo.App. 470; Williams v. Williams, 67 Mo. 661; Glenn v. Lehnen, 54 Mo. 45; Pfeiffer v. Kingsland, 25 Mo. 66. (4) The court erred in giving instruction number 1 on behalf of respondent, because said instruction directed the jury to return a verdict for a specific amount. This being a suit upon a note, the court was infringing upon the province of the jury when it instructed the jury what amount to return their verdict for. Corbitt v. Mooney, 84 Mo.App. 645; Cates Adm's. v. Nickell, 42 Mo. 169; Burghardt v. Brown, 60 Mo. 24; Dyer v. Combs, 65 Mo.App. 151; Poulson v. Collier, 18 Mo.App. 583; Glenn v. Lehnen, 54 Mo. 45. (5) The verdict of the jury is not responsive to the issues made in this cause, by the pleadings and the evidence. The court told the jury in instruction number 1, given on behalf or respondent, that if they found that Hodge was indebted to respondent and that the debt was evidenced by a note and that appellant promised to pay said debt and in consideration of said promise, respondent released Hodge and accepted the defendant, and the defendant fully consented thereto, then the verdict should be for the plaintiff. No one testified that resondent accepted appellant as his debtor and released J. B. Hodge and that appellant consented to such state of facts, and for that reason the instruction number 1 is not based upon the evidence and the verdict as rendered is not responsive to the issues made by the pleadings and the evidence. Plymouth Cordage Co. v. Yeargain 87 Mo.App. 561; Fenwick v. Logan, 1 Mo. 401; Easton v. Collier, 1 Mo. 421; Hickman v. Byrd, 1 Mo. 495; Parker's Adm'r v. Moore, 29 Mo. 218; Henderson v. Davis, 74 Mo.App. 1. Glenn v. Lehnen, 54 Mo. 52.
No brief filed for respondent.
This is an action begun before a justice of the peace to recover from defendant the amount remaining unpaid on a certain note executed by one Hodge to plaintiff. It is averred that defendant, for a valuable consideration, "and for the purpose of extending the time of payment of said note," contracted to pay the unpaid balance due upon the note, and paid fifty dollars on account thereof, leaving a balance of $ 129.30 due and unpaid thereupon; and judgment is prayed for said sum with costs. Plaintiff prevailed before the justice of the peace, and upon defendant's appeal to the circuit court and a trial there de novo, before the court and a jury, there was a verdict and judgment for plaintiff, and the case is here on defendant's appeal.
One J. B. Hodge was indebted to plaintiff upon a promissory note theretofore executed by him and secured by a chattel mortgage upon a team of mules which he had purchased from plaintiff. Hodge went to work for the defendant, McHaney, apparently early in 1911, using this team of mules in clearing land, building fences and doing other work upon defendant's property. The note to plaintiff was then overdue, and Hodge testified that when defendant asked him to come upon defendant's place to do this work he told defendant that he would do so if defendant would "go on" this note; that defendant did not agree to do so and later, about April, 1911, the witness told defendant that plaintiff was demanding the mules, and that he (Hodge) had written plaintiff to come and get them; that nothing further was said until a little later when defendant told the witness that he had seen plaintiff and had paid the latter $ 50 on the note and "guaranteed the balance." The $ 50 thus paid by defendant was money which defendant then owed Hodge.
There is no dispute as to the fact that defendant met plaintiff in "Shelton's store"--evidently in April, 1911--paid plaintiff the $ 50 on the note, and made some further agreement regarding the payment of the balance then remaining due thereon. There is some conflict in the testimony as to just what was the oral agreement respecting the payment of the balance on the note. Plaintiff testified:
"We agreed in Shelton's store that if I would take $ 50 and leave the team alone that he would pay it (the note) and I taken him for it." Q. "He agreed to pay $ 50 on the note?" A. "Yes, sir." Q. "And did at that time?" A. "Yes, sir." Q. "And agreed to pay the rest?" A. "Yes, sir." Q. "Did you look to Hodge after that for the money?" A. "No, sir, I never did ask Hodge for a nickel." . . . Q. "And that was the contract between you and McHaney that Hodge was to keep the mules and that he (McHaney) was to pay for them?" A. "Yes, sir, that was the understanding, that he was to pay me this $ 50 and me not bother the mules."
On cross-examination plaintiff said that defendant agreed "that he would pay the note or deliver the mules--to pay the money or return the mules." He denied, however, that defendant had only promised to see that Hodge paid the debt, saying: "He promised to pay me."
Two witnesses present at the time of the oral agreement in question both testified that McHaney agreed to pay the $ 50 and to pay the balance on the note some time "in the fall," and that in consideration thereof plaintiff agreed not to take possession of the mules "until fall."
Defendant's testimony is that plaintiff, at the time in question, asked him to sign the note and that he refused to do so; that he paid plaintiff the $ 50, and said: "I will guarantee that you will not be put to any trouble--if old man Hodge doesn't make a good crop I will guarantee that you will have your money or get your mules."
It appears that some time in the latter part of this same year one of the mules died. Thereafter Hodge took the other mule to plaintiff who told him to take it to defendant who had agreed to be responsible for the debt. Hodge did this, but defendant denied any responsibility in the matter and directed Hodge to deliver the mule to plaintiff. Thereupon the mule was turned over to plaintiff at an agreed valuation which was credited upon the note.
The jury, upon instructions to be hereafter noticed, returned a verdict for plaintiff in the sum of $ 140.32, being the amount remaining unpaid on the note, with accrued interest thereupon; and judgment was accordingly entered for this amount.
I. After the cause reached the circuit court, plaintiff was permitted to file an amended petition. It is argued that the original statement filed before the justice of the peace stated no cause of action, and that it could not be amended in the circuit court. But it is quite clear that the original statement was sufficient as a statement of a cause of action before a justice of the peace, for it sufficiently advised the defendant of the nature of the claim asserted against him, and was so far specific and definite as to bar another action upon the same demand. [See Rundelman v. Boiler Works Co., 178 Mo.App. 642, 161 S.W. 609.] It is therefore unnecessary to further discuss this assignment of error.
II. It is urged that the demurrer to the evidence interposed by defendant should have been sustained. Appellant contends that under the evidence adduced the oral agreement upon which defendant is here sought to be held liable is a collateral undertaking to pay the debt of another and within the Statute of Frauds. This question was raised below and is pressed upon us here.
Our statute (Section 2783, Revised Statutes 1909), which follows substantially the English Statute of Frauds and Perjuries provides that no action shall be brought . . . to charge any person upon any special...
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