Newton Grain Company v. Pierce

• Decision Date: 12 April 1904
• Citation: 80 S.W. 268,106 Mo.App. 200
• Parties: NEWTON GRAIN COMPANY, Respondent, v. PIERCE, Appellant
• Court: Missouri Court of Appeals

80 S.W. 268

106 Mo.App. 200

NEWTON GRAIN COMPANY, Respondent, v. PIERCE, Appellant

Court of Appeals of Missouri, St. Louis

April 12, 1904

Appeal from Greene Circuit Court.--Hon. W. D. Hubbard, Special Judge.

AFFIRMED.

STATEMENT.

As stating his cause of action, plaintiff filed the following complaint (omitting caption) before a justice of the peace:

"The plaintiff says it is a corporation duly organized and existing under the laws of the State of Missouri, and that said defendant, N. J. Pierce, is indebted to plaintiff in the sum of sixty-six and 96-100 dollars, balance due on account for goods, wares and merchandise sold and delivered to W. G Dennis, at the special instance and request of said defendant, N. J. Pierce. Said goods and merchandise were sold and delivered at various times between August 1, 1902, and March 15, 1903, an itemized account of which, marked exhibit 'A' is herewith filed.

"That all of said goods, wares and merchandise were sold and delivered to said W. G. Dennis, solely upon the credit of said defendant, and upon the promise and assurance of defendant, N. J. Pierce, that he would pay the plaintiff for the same."

The account filed with the complaint, was not controverted.

The cause was appealed to the Greene circuit court where, on a trial anew, the issues were submitted to Hon. W. D. Hubbard special judge, who, after hearing the evidence made the following finding of the facts:

"The court finds that one Pierce, son of defendant, N. J. Pierce had a contract to carry United States mails between the postoffice and railroad stations in the city of Springfield Missouri, and that defendant was on the bond of his son for the faithful discharge of his contract. That defendant's son abandoned the contract, and defendant as bondsman, employed W. G. Dennis to carry out the contract of his son, and furnished Dennis with some horses and vehicles to be used in this business.

"That W. G. Dennis, requiring feed for the teams in this service, went to plaintiff, Newton Grain Company, to procure same. The court finds that W. G. Dennis was without means to pay cash for the feed, and that plaintiff was unwilling to extend to him credit unless some one would be responsible for such feed.

"The court further finds that thereupon and prior to the sale of the goods sued for in this case, W. G. Dennis brought into the store of plaintiff, the defendant N. J. Pierce, and that defendant made an agreement with plaintiff, that plaintiff should furnish feed and merchandise to W. G. Dennis, and defendant would be responsible with Dennis for the payment of same, and that the feed and merchandise so furnished was charged upon the books of plaintiff to W. G. Dennis, but the said charges were made by plaintiff for the convenience in keeping its books and accounts.

"The court further finds that W. G. Dennis and N. J. Pierce were joint purchasers of said feed and merchandise and both parties are primarily liable to plaintiff for payment of the same.

"The court further finds there is due plaintiff on said account from defendant, the sum of $ 66.96 with interest thereon at six per cent per annum from August 11, 1903, the date of the institution of this action."

Defendant objected to the finding of facts, which objections were overruled and the court gave judgment for plaintiff for $ 67.63.

Judgment affirmed.

J. T. White for appellant.

On the showing of plaintiff, the defendant is not liable under the statute of frauds. To constitute an original obligation on part of one, when the goods are delivered to another, it must be shown that credit was given solely upon the responsibility of the person making the promise. Rottman v. Fix, 25 Mo.App. 573; Price v. Chicago, 40 Mo.App. 194; Osborn v. Emery, 51 Mo.App. 413; Gill v. Reed, 55 Mo.App. 248; Rottmann v. Pohlmann, 28 Mo.App. 407; Bugbee v. Kendricken, 130 Mass. 437; Swift v. Pierce, 13 Allen 136.

M. C. Smith for respondent.

Where the main purpose of the defendant in making an oral promise to plaintiff to become responsible for feed and supplies furnished W. G. Dennis, was to serve or promote some interest or purpose of defendant, such promise of defendant will be treated as original, and primarily liable with W. G. Dennis for the payment to plaintiff for the supplies sold and delivered. Sewer Pipe Company v. Smith, 36 Mo.App. 626; Mackey v. Smith, 28 P. 976; Ames v. Foster, 106 Mass. 400; Brandt on Suretyship and Guaranty, pp. 71, 72, sec. 56.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J. (after stating the facts).

The evidence shows that plaintiff refused to sell Dennis feed on his own account, and in order to procure feed on credit Dennis hunted up Pierce and the two went to plaintiff's place of business; that Pierce said to plaintiff's manager for him to let Dennis have feed and he would "stand good for it or pay for it;" that afterwards he made one or more payments to plaintiff for feed furnished Dennis; that, as found by the court trying the case, plaintiff charged the feed to the account of Dennis only. The explanation for thus keeping the account, as given by plaintiff, is that it was done for...