Robertson v. Findley

• Decision Date: 31 January 1861
• Citation: 31 Mo. 384
• Parties: ROBERTSON, Respondent, v. FINDLEY et al., Appellants.
• Court: Missouri Supreme Court

31 Mo. 384

ROBERTSON, Respondent,

v.FINDLEY et al., Appellants.

Supreme Court of Missouri.

January Term, 1861.

1. No consideration need pass directly between the obligee in a bond and the surety. The consideration which supports the principal's contract will support that of the surety. Notwithstanding the promise of the surety may appear to be founded on a past or executed consideration, he may nevertheless be liable; for the consideration may have moved at the instance or request of the surety, and if so, the promise is not a naked one, but is coupled with the precedent request, and the subsequent undertaking will be valid and binding upon him, and such request may be inferred from the circumstances and the nature of the transaction.

2. A. and B. were partners. A. sold out to B., the latter assuming all the liabilities and indebtedness of the firm. To secure A., B. gave him a bond with C. as surety. A. sued B. and C. on the bond. Both were served, but B. did not answer, and judgment by default was entered against him. C. answered and on the trial introduced B., his co-defendant, as a witness in his behalf, to prove that the sale of merchandise by A. to B. took place three or four days previous to the execution of the bond, and that full possession was given to B. at the time of sale. Held, that B. was a competent witness in behalf of C.

Appeal from Carroll Circuit Court.

Findley and Robertson were partners in business. On the 19th of August, 1857, Robertson sold out his entire interest in their stock of goods to Findley, together with all the rights, credits and evidences of debt due the firm, and Findley promised to pay all demands against the firm of every nature whatever, and to hold Robertson free and harmless from all liabilities of the firm. For the purpose of securing Robertson against all the liabilities of the firm, Findley as principal and Guillett as his security executed to Robertson a bond, bearing date 19th August, 1857. This action is brought on that bond and was produced in evidence at the trial. Both defendants were served, and Findley not appearing, judgment by default was rendered against him. Guillett appeared and answered, admitting the execution of the instrument sued on, but alleged that it was executed by him some three or four days after its date, 19th August, 1857; that said sale between Findley and Robertson took place three or four days before said instrument was executed, and that when executed the date was left blank, and afterwards filled up. At the trial defendant, Guillett, offered as a witness in his behalf, his co-defendant, Findley, to prove that the goods were sold and delivered by Robertson to him, Findley, three or four days before the instrument sued on was executed. The court refused to permit Findley to testify.

Harris, for appellants.

I. The petition as against Guillett does not state facts sufficient to constitute a cause of action. The petition does not show that the sale was made at the instance or request of Guillett, the surety, but it does show that the sale was made before execution of the instrument sued on, and that the consideration of said instrument as to Guillett was past executed. The petition where it recites a portion of the instrument (and the instrument itself which is made part of the petition,) states that, “whereas William C. Findley did on the 19th day of August, 1857, purchase from Edward C. Robertson the stock of goods, wares,” &c. This is the only part of the petition or instrument of writing which purports to set forth the consideration of the instrument. It speaks in the past tense: “Whereas William C. Findley did, on the 19th of August, purchase,” &c. and although upon the face of the petition and instrument it appears that the sale and instrument were made on the same day, that can make no difference, as the lapse of an hour after the sale would have the same effect as the lapse of a month. The case of Parker v. Bradley, 2 Hill, 585, is almost identical with this, and is relied on as decisive that the petition in this case is fatally defective. (See also as to executed consideration: Pfeiffer v. Kingsland, 25 Mo. 66; Leonard v. Vredenburg, 8 Johns. 28; Chaffee v. Thomas, 7 Cowen, 360; Dearborn v. Bowman, 3 Metc. 155; 2 Amer. Lead. Cas. 126 and seq. and 146.) The undertaking of a surety is to be construed strictly. (Blair v. Perpetual Ins. Co. 10 Mo. 559.) Sureties are favorites, both of courts of law and equity--both in law and equity contracts involving their rights will, so far as respects them, receive a more rigid and less liberal construction than between the original contracting parties. As against a surety, the contract can not be carried beyond the strict letter of it. (Ludlow v. Simonds, 2 Caine's Cases in Error, 29 & 49.)

II. Findley was a competent witness for Guillett, a judgment by default having been rendered against him at the previous term. United States v. Leffler, 11 Pet. 86; Bradley v. Neal, 16 Pick. 501; Chaffee v. Jones, 19 Pick. 262; 1 Greenl. Ev. 355-6; Ganett v. Ferguson, 9 Mo. 126; Coons v. Green, ib. 200.) The whole matter as to which it was proposed to examine him was simply whether as between plaintiff and Guillett there was any thing which amounted to a valid consideration for Guillett's undertaking; his own liability was already fixed and certain. (Beale v. Finch, 1 Kernan, 128; Sess. Acts 1857, p. 181; Blodgit v. Morris, 4 Kernan, 482.)

Ray, for respondent.

I. It is denied on behalf of respondent that the instrument of writing sued on and read in evidence to the jury, was or is, as against said Guillett, invalid and void upon the alleged ground that it showed on its face that it was made upon a consideration which, as to said Guillett, was past and executed. It is insisted for respondent that the sale of goods, wares and merchandise, and the assumption of partnership liabilities, together with the execution and delivery of the instrument of writing sued on, (as mentioned in said petition and the instrument itself,) all taken together, constitute but one original entire transaction; that the execution and delivery of the instrument sued on was but the consummation of the trade--was in fact the trade itself. Beyond and outside of this instrument itself, there is no evidence whatever of a trade between the parties--was in fact no such trade. This instrument is at once the bargain of sale, and transfer and...