Rippey v. Friede

Decision Date31 March 1858
Citation26 Mo. 523
PartiesRIPPEY, Appellant, v. FRIEDE, Respondent.
CourtMissouri Supreme Court

1. Where there is any evidence, however slight, tending to prove a fact in issue, the court should not take the case from the jury by ruling that there is no evidence tending to prove such fact.

Appeal from St. Louis Circuit Court.

Friede, the defendant in this case, was the owner of a building in course of erection by one Jeter, a contractor. Rippey, plaintiff, furnished materials to said Jeter. The ground of this action is an alleged promise by Friede to pay, out of moneys in his hands due to Jeter, the value of such materials in consideration that plaintiff would not encumber the building with a lien under the mechanics' lien law.

The court gave the following instruction: “The jury are instructed that as Jeter was the original debtor, and the plaintiff has no claim or personal remedy against the defendant for said balance of account sued upon, except upon the strength of a promise by the latter to pay the same in consideration that the plaintiff would not file a lien against the building as stated in the petition, the jury should find for the defendant, there being no evidence that such promise was made by him, notwithstanding said balance still remains unpaid, and the materials were furnished by the plaintiff for, and entered into, the construction of the defendant's building.” The plaintiff thereupon took a nonsuit, with leave, &c.

Cline & Jamison, for appellant.

I. The evidence was sufficient to support the allegation in the petition. (22 Mo. 157.) At least there was some evidence tending to establish the allegation, the sufficiency of which it was the province of the jury and not the court to pass upon. (18 Mo. 170; 12 Mo. 387.) There was a sufficient consideration of Friede. The court erred in ruling out the order given by Jeter on defendant in favor of plaintiff.

Gantt, for respondents.

I. The order not being accepted in writing by defendant was properly excluded. (R. C. 1845, p. 172.)

II. There was absolutely no evidence at all tending legitimately to establish such a promise as plaintiff alleged in his petition.

RICHARDSON, Judge, delivered the opinion of the court.

The defendant was liable for the debt if, with money in his hands due to Jeter, he promised the plaintiff to pay the account in consideration that the latter would not encumber his property with a lien, which would have secured the debt, and that the plaintiff, relying on his promise,...

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19 cases
  • Julian v. Kansas City Star Co.
    • United States
    • Missouri Supreme Court
    • January 27, 1908
    ... ... established by the evidence. Morse v. Maddox, 19 Mo ... 451; Houghlating v. Ball, 19 Mo. 84; Emerson v ... Sturgeon, 18 Mo. 170; Rippey v. Friede, 26 Mo ... 523; Benton v. Klein, 42 Mo. 97; McFarland v ... Bellows, 49 Mo. 311; Yates v. Brookanside, 27 ... Mo. 531; Husten ... ...
  • Horton v. St. Louis, Kansas City & Northern Ry. Co.
    • United States
    • Missouri Supreme Court
    • October 31, 1884
    ...remote, tending to establish plaintiffs claim, a demurrer to the evidence cannot be sustained. Routzong v. R. R., 45 Mo. 236; Rippy v. Friede, 26 Mo. 523; Deer v. Plaint, 42 Mo. 45. The other instructions given for plaintiff were properly given, and those given for the defendant were as fav......
  • Thrasher v. Greene County
    • United States
    • Missouri Supreme Court
    • June 23, 1891
    ... ... Turner v. Toler, 34 Mo. 461; Owens v ... Rector, 44 Mo. 389; Bowen v. Lazalere, 44 Mo ... 383; McFarland v. Bellows, 49 Mo. 311; Rippey v ... Friede, 26 Mo. 523 ...          White & McCammon and C. W. Thrasher for respondent ...          (1) The ... county ... ...
  • Gregory v. McCormick
    • United States
    • Missouri Supreme Court
    • March 5, 1894
    ...to support issues properly raised having been admitted on behalf of appellant. McQuillin's Pl. and Pr., secs. 777, 778, 780, 781; Rippey v. Friede, 26 Mo. 523; Bankston's Adm'r v. Farris, 26 Mo. 175; Taylor v. Short, 38 Mo.App. 21; Matthews v. Co., 50 Mo. 149 and 198; Deere v. Plant, 42 Mo.......
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