Page v. Becker

• Decision Date: 31 March 1862
• Citation: 31 Mo. 466
• Parties: THOMAS S. PAGE, Respondent, v. ALBERT BECKER, Appellant.
• Court: Missouri Supreme Court

31 Mo. 466

THOMAS S. PAGE, Respondent,

v.ALBERT BECKER, Appellant.

Supreme Court of Missouri.

March Term, 1862.

1. A promise by A to B upon a consideration moving from B to A, to pay C, a debt of B to C will not authorize an action by C against A, there being no privity of contract.

2. A purchased land of B, and agreed to pay off the note which B had given, and secured by a mortgage upon the land. The note not having been paid by A or B to the holder of the incumbrance, C paid and took up the note from the holder, and sued A upon his promise made to B. Held, that he could not recover for want of privity, and for want of consideration.

Appeal from St. Louis Circuit Court.

Z. Ward and J. J. Page bought real estate of Lewis Hampton, and to secure the payment of the purchase money executed their notes at one and two years, with a mortgage upon the property. Subsequently, they sold the real estate to the defendant Becker, who assumed to pay said notes and mortgage as part payment of the purchase by him. Becker failing to pay the note first falling due, the plaintiff Thomas S. Page paid the money due Hampton, and obtained the note, and then sued Becker upon the note, setting up a contract in writing between Ward and Page and the defendant's agent, as authorizing a recovery by himself.

Upon the trial, the evidence presented a state of facts as detailed above, and the defendant, among other instructions, asked one--that the plaintiff can not recover under the pleading and proof in this case; which was refused, and verdict and judgment were given for the plaintiff, and defendant appealed.

J. K. Knight, for appellant.

I. Plaintiff cannot avail himself of the contract between Z. Ward and J. J. Page without an assignment of that contract to himself. There being no privity of contract between him and the defendant, he was a stranger to the transaction both at law and equity. (Town of Milton v. Story, 11 Verm. 101; City of Louisville v. Hyatt, 5 B. Mon. 199.)

II. The taking up the note for honor of maker, did not assign the contract. If proceeding directly against the parties to the note, the plaintiff could not recover on the doctrine of supra protest. (Story on Prom. Notes, p. 453, § 453; Byles on Bills, 207-210; Chitty on Bills, 165, 236; Konig v. Bayard, 1 Pet. 250.)

III. This is not a case of novation and substitution. (Addison on Cont., 1005; Burge on Suretyship, 166.)

IV. The assignment of the note (if taking it up for honor was such) worked an assignment of the mortgage security. (Crow v. McCreary & Co., 4 Iowa, 434; Dick v. Maury, 9 Smed. & Marsh. 448.) The plaintiff then held a double security, one against the makers of the note and the other against the property itself. (Kretzer v. Bradstreet, H. G. Greene, R. 382.)

Decker & Voorhis, for respondent.

The brief of respondent's counsel was principally confined to a question as to the authority of defendant's agent and the subsequent ratification of his acts.

Upon the point upon which the case turned they presented the following:

The ratification by Becker of his agent's act, in making the written agreement to pay the notes mentioned therein, made the notes his own debt, which he agreed to pay as part consideration for the land purchased.

His making the payment of the notes his own debt, takes the agreement out of the statute of frauds. (Browne on Stat. Frauds, 162; Barber v. Bucklin, 2 Denio, 45; Brown v. Curtis, 2 Comst., N. Y., R. 229; Farley v. Cleveland, 4 Cow., R. 432.)

It is not necessary that Becker's promise should be in writing. (Dearborn v. Parks, 5 Greenl. 81; Eldwood v. Monk, 5 Wend. 235; Bank Mo. v. Benoist, 10 Mo. 519; Robbins v. Ayres, 10 Mo. 538.)

BATES, Judge, delivered the opinion of the court.

This cause was heretofore submitted to the court, and an opinion prepared but not delivered. The parties now consent that the opinion may be filed and considered as the judgment of the court. The judgment of the court below is therefore reversed, the other judges concurring.

EWING, Judge.

The only question we deem it necessary to consider in this case is whether upon the agreement alleged in the petition Page could maintain the action. The general rule, to which it is claimed this case is an exception, is, that the person from whom the consideration of the contract actually moved is the party to sue, and that a stranger to the consideration can not maintain an action; in other words, that there must be a privity of contract between the parties to the suit in order to render the defendant liable to an action by the plaintiff on the contract. In the cases of the Bank of Mo. v. Benoist & Hackney, 10 Mo. 519, and Robbins v. Ayres, 10 Mo. 538, it was held that where the promise was made for the benefit of a third person he might maintain an action in his own name against the promiser. In the case of Manny et al. v. Frazier's adm'r, 27 Mo. 420, which is similar to this, the principle of the former decisions was held not to be applicable. In that case the partnership firm of Bell & Sticknell was indebted to the plaintiff on two promissory notes. Bell sold his interest in...