Robbins v. Ayres

• Decision Date: 31 March 1847
• Citation: 10 Mo. 538
• Parties: ROBBINS v. AYRES.
• Court: Missouri Supreme Court

10 Mo. 538

ROBBINS

v.AYRES.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

PRIMM & WHITTELSEY, for Appellant. 1. That a stranger to the consideration can maintain no action, and if this be good law court erred in refusing the defendant's instructions. See Price v. Easton, 4 Barn. & Ald. 433, affirming the case of Crow v. Rogers, 1 Strange, 592; Bent v. Brainerd, 1 Mo. R. 285; Thornton v. Smith et al., 7 Mo. R. 89; Chauvin v. Labarge, 1 Mo. R. 556; Wain v. Walters, 5 East's R. 10; 2 Smith's L. Ca. 147; 21 Law Lib. 107. A similar rule applies to deeds, that none but parties to a deed can sue upon it, and then the instruction was erroneously refused. Southampton et al. v. Brown, 6 Barn. & Cres 618. 2. The next point made is, that unless Robbins did agree in writing, the promise, under the statute of Frauds, would be void. See Rev. Code 1835, p. 117; Code 1845, ch. 68, p. 530; Birkney v. Darnell, Salk. 7; 1 Smith's L. Ca. 134 and notes. And if this agreement was made in the form of a covenant by Robbins with Dickinson, then the plaintiff, if he had any interest in the deed, should have sued on the same, making himself a party thereto by proper averments, and he cannot use the writing merely as evidence on the general issue in an action of assumpsit, for the defendant, Robbins, having elected in what form and manner he would become liable for the debts of Dickinson, the defendant cannot vary the liability, and therefore the instruction was erroneously refused. Wain v. Walters. 3. If the agreement between Dickinson and Robbins (which, if the defendant used to prove the defendant's liability), was under seal, then assumpsit will not lie, and the court, sitting as a jury, should have found for the defendant. See 1 Chitty's Pl. 117, n. t. n. 256; Lawton v. Erwin, 9 Wend. 233; People v. Holmes, 5 Wend. 191; Richards v. Killam, 10 Mass. 243, 247; Anderson v. Montgomery, 19 Johns. R. 162; Codman v. Jenkins, 14 Mass. 93. 4. If the promise is by deed, the suit must be debt or covenant. 1 Chitty's Pl. 117, n. t. n. 256; 9 Wend. 338; 5 Wend. 191. And a special action of assumpsit cannot be maintained, much less one on the common counts. See express decision of Massachusetts courts, per Chief Justice Sewall, 10 Mass. 247, Richards v. Killam. 5. The suit therefore should have been on the deed, in the name of Dickinson, to use of Ayres, or covenant in the name of Ayres. Lawton v. Erwin, 9 Wend. 338; People v. Holmes, 5 Wend. 191; Richards v. Killam, 10 Mass. 244, 247. 6. The promise of Robbins was to pay the hands $600; it was therefore a joint promise to pay all jointly, and one cannot sever and sue alone. And the court should therefore have found for the defendant. And a promise to pay jointly must be sued on by all. 1 Chitty's Pl. m. y. n. 14; Baker v. Jewell, 6 Mass. R. 462; Montague v. Smith, 13 Mass. R. 405 Wells v. Gaty et al., 9 Mo. R. 565.

EAGER & HILL, for Appellee.

SCOTT, J.

This was an action of assumpsit on the common counts, and a special count; plea, non-assumpsit; verdict and judgment for Ayres, plaintiff below. It appears that H. B. Dickinson was the owner of a diving bell boat, used in taking up the cargoes of steamboats that had been sunk. The boat was employed in the Mississippi. While employed, Dickinson sold out to the appellant, defendant below. An instrument of writing, under seal, was executed between Dickinson and Robbins, by which Dickinson sold the boat to Robbins, and Robbins stipulated to pay the hands employed on the boat the sum of six hundred dollars, for services they had rendered. This instrument was read to the hands, and they accepted its terms. There was also evidence that Robbins at the time declared that he would pay the hands the sum of $600, or that he said he would see them paid that sum. After the sale the boat was taken to Memphis, and whilst there Dickinson drew an order on Robbins in favor of the plaintiff below, which was protested. It appears from the evidence that the instrument of writing between Dickinson and Robbins was left with Robbins. The special count in the declaration was on the parol promise of Robbins to Dickinson that he would pay the hands the sum of six hundred dollars.

The trial of the cause was submitted to the court sitting as a jury, and the court was asked to declare the law to be as is stated in the following instructions on the part of the defendant, which were given, viz: 1. If the jury believe from the evidence that an agreement under seal was made between Dickinson and Robbins, for the payment of six hundred dollars to the hands, and not to each his proportion, then all the hands have a joint interest, and they cannot sever and sue alone. 2. If the jury believe from the evidence that the defendant's agreement was to pay the hands, jointly, six hundred dollars, the defendant cannot sue alone. 3. If the jury believe from the evidence that the defendant's promise was to pay the plaintiff jointly with several others who are not joined in suit, then the plaintiff cannot recover. 4. If the jury believe from the evidence that the original indebtedness for the work and labor of the plaintiff was by Dickinson to plaintiff, that then the promise of the defendant is void under the statute of frauds, and unless the same was in writing and signed by the defendant or his agent thereto lawfully authorized, or unless there was some new consideration of benefit passed from said Dickinson to the defendant.

And refused the following instructions asked by the defendant, viz: 1. If the jury believe from the evidence, that no consideration passed from the plaintiff to the defendant, for his promise by deed to Dickinson to pay the hands six hundred dollars, then the plaintiff is a stranger to the consideration and cannot recover in this action. 2. If the jury believe from the evidence, that the agreement between Dickinson and Robbins was under seal, then the plaintiff cannot recover in this form of action. 3. If the jury believe from the evidence, that the defendant was a trustee, for certain purposes in the deed spoken of by the witnesses, and especially to reserve and pay the hands six hundred dollars, then the plaintiff cannot recover in this action. 4. If the jury believe from the evidence, that the instrument of writing, executed by Dickinson and the defendant, upon...