Pfeiffer v. Kingsland

• Decision Date: 31 March 1857
• Citation: 25 Mo. 66
• Parties: PFEIFFER, Plaintiff in Error, v. KINGSLAND et al., Defendants in Error.
• Court: Missouri Supreme Court

25 Mo. 66

PFEIFFER, Plaintiff in Error,

v.KINGSLAND et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1857.

1.An agreement guaranteeing the performance of a contract previously entered into with another, though in writing, must have a consideration to be valid and binding.

Error to St. Louis Court of Common Pleas.

This was an action upon the following guarantee, bearing date October 27th, 1832: “We agree to guarantee that Mr. M. Drummond will do all that he says he will do in building machinery for a two-horse grist-mill for Mr. Pfeiffer.[[[[[Signed] Kingsland & Cuddy.”Drummond had agreed, August 4th, 1852, to build and finish for Pfeiffer the machinery for a two-horse grist-mill.The plaintiff failing to show any consideration for said guaranty moving between himself and defendants, the court excluded evidence tending to show a breach of the original contract on the part of Drummond.The court instructed the jury that, upon the evidence, the plaintiff could not recover; whereupon plaintiff took a non-suit, with leave to move to set the same aside.

Kribben, for plaintiff in error.

I.The defendants do not set up a want of consideration in their answer, but defend upon the main merits of the case.(See, generally, 8 Johns. 29;1 Parsons on Cont. 496; 2 Hall, 474;17 Johns. 113;2 McLean, 103;5 Bingh. 113;Roberts on Frauds, 117;2 Co. Rep.2 Atk. 560; 1 Chitty Pl. 71;2 Bingh. 464;1 McLel.& You. 205.)

Hitchcock and Gibson, for defendants in error.

SCOTT, Judge, delivered the opinion of the court.

A sufficient consideration, or recompense, or motive, or inducement to make the promise upon which a party is charged, is of the essence of a contract not under seal, except in cases where the statute law has introduced a different rule.A promise by a party, even in writing, to pay a debt already incurred by a third person, is not available if there be no new consideration.An undertaking to answer for the debt of another, though in writing, is void if no consideration move between the plaintiff and defendant, either of forbearance or otherwise.A guaranty of a note, like any other promise, without a consideration, is void.But if the undertaking is cotemporaneous with the creation of the original debt, the guarantor is presumed to participate in the original consideration.(Leonard v. Vredenberg, 8 Johns. 29.)It is entered of record “that it is agreed that Drummond proved that no consideration passed between plaintiff and defendants for...