Ramsey v. Maberry

• Decision Date: 23 February 1909
• Citation: 116 S.W. 1066,135 Mo.App. 569
• Parties: RAMSEY, Respondent, v. MABERRY, Appellant
• Court: Missouri Court of Appeals

116 S.W. 1066

135 Mo.App. 569

RAMSEY, Respondent, v. MABERRY, Appellant

Court of Appeals of Missouri, St. Louis

February 23, 1909

Appeal from Ozark Circuit Court.--Hon. John T. Moore, Judge.

REVERSED AND REMANDED.

Livingston & Conrad for appellant.

Now the plain, indisputable legal proposition is presented, that if such were true, the agreement is wholly without consideration, and a mere nudum pactum. This contention of appellants is so apparent and the law so well settled in his favor that it would seem to be useless to cite authorities. Zeer v. Klung, 121 Mo.App. 285; Ward v Hartley, 178 Mo. 135; Haseltine v. Ausherman, 87 Mo. 410; Smith v. McCall, 63 Mo.App. 681; Klausman Co. v. Schoenlaw, 32 Mo.App. 357; Dick Bros. v. Finnell, 39 Mo.App. 276; Wendover v Baker, 121 Mo. 273; Riley v. Stevenson, 118 Mo.App. 187.

Geo. W Boone and Thornberry & Luna for respondent.

It is the settled rule of law that a contract which either benefits the promisor or the promisee, or where the least injury or detriment is suffered by the promisee is a good consideration. Marks v. Bank, 8 Mo. 316; Lancaster v. Elliott, 55 Mo.App. 249; Delaney v. Bowman, 82 Mo.App. 252; Columbia Inc. L. Co. v. Elec. Mfg. Co., 64 Mo.App. 115; Strode v. Transit Co., 197 Mo. 623. Though promise is voluntarily made, yet the promisee relies upon it, and is injured by the failure of the promisor to perform it, an action will lie by the promisee. Delaney v. Bowman, 82 Mo.App. 252.

OPINION

GOODE, J.

Plaintiff asks damages for the breach of a contract entered into between him and defendant. Both men are cattle dealers in Ozark county. Plaintiff owned fifty-four head of cattle on which he executed a chattel mortgage to defendant June 12, 1905, to secure the payment of a promissory note for $ 999.78. The cattle were on plaintiff's farm in said county and he was prohibited by the mortgage from removing them, while it was in force, from the county, without obtaining the consent of defendant, the mortgagee. Neither the mortgage nor the note is in evidence, nor is it stated anywhere in the testimony when the debt matured. While the note was still unpaid, plaintiff applied to defendant for permission to drive the cattle to the railway at Marshfield, in Webster county, and sell them or ship them to St. Louis if he (plaintiff) thought best to do so. Plaintiff told defendant he wished to act on his (plaintiff's) own judgment, and have the right when he got to the railway to sell or ship to St. Louis for sale, if he thought the market was good. In making the request plaintiff offered to indemnify defendant by giving another note with personal security, against loss in consequence of the cattle being taken out of the county. Defendant said he did not want any other note and for plaintiff to go ahead, agreeing specifically to the request as made. At the same time defendant said he intended to drive his own cattle out of the county in three or four days and if plaintiff was not ready before then, they would drive together. This was done and plaintiff's and defendant's stock, and also the cattle of two other men, Martin and Young, were driven out at the same time. We infer from the evidence the pasturage was not good in Ozark county and one purpose of driving from there was to get better grass. Plaintiff's and defendant's cattle were driven within four miles of Marshfield and put on a pasture. The market price in St. Louis at the time was $ 2.85 a hundredweight for cattle and as plaintiff deemed this a good price, he arranged with the railway station agent to ship in a day or two. Thereupon defendant interfered and said he (defendant) was going to drive his cattle further north into Saline county and refused to let plaintiff ship to St. Louis or sell. The petition alleges defendant compelled plaintiff to drive his cattle north, and compelled him afterwards to ship them to St. Louis at a time when the market was down, and plaintiff lost money by the fall in the market, the loss of the animals in weight, and the expense he was put to in driving and caring for the cattle. Compensation for these losses was asked. We have stated, the testimony in its aspect most favorable to plaintiff, since the jury found a verdict in his favor. Defendant did not deny making the agreement with plaintiff as testified, neither did he admit it. He denied refusing to permit plaintiff to ship his cattle from Marshfield to St. Louis and testified he (defendant) acceded to plaintiff's request, provided plaintiff would have a draft for the proceeds of the cattle sent to the bank at Marshfield payable to defendant; but plaintiff decided to go on north with the other cattlemen. The stock was driven into Saline county and about thirty days afterwards was sold on the St. Louis market for $ 2.15 per hundredweight, or at a loss of seventy cents a hundred. It is in proof the cattle shrunk forty or fifty...