Rogers v. Gosnell

• Decision Date: 31 January 1875
• Citation: 58 Mo. 589
• Parties: JOSEPH M. ROGERS, et al., Respondents, v. W. A. GOSNELL, Appellant.
• Court: Missouri Supreme Court

58 Mo. 589

JOSEPH M. ROGERS, et al., Respondents,

v.W. A. GOSNELL, Appellant.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Jackson Circuit Court.

Gage & Ladd, for Appellant.

I. The contract of July 18th, 1868, between the Johnson heirs and defendant, was an executory contract on both sides, in which the obligation of either party was dependent upon the performance of the opposite party, and which was subject to the control of the parties making it, and liable to be rescinded by them. (Bonaffe vs. Lane, 5 La. Ann., 225.)

II. The question in this case is not covered by the decision in Lawrence vs. Fox, (20 N. Y., 268). It may be remarked, that in that case the contract was an executed one.

W. B. Napton, for Respondent.

The questions of law in this case were formerly decided by this court. (See 51 Mo., 467.)

WAGNER, Judge, delivered the opinion of the court.

From the record it appears that the plaintiffs were real estate agents, and as such they were employed to sell a piece of property for a specific amount. They succeeded in making sale of the same to the defendant, and by the written agreement entered into between the parties to the sale, which provided that the payments on the one side and the execution of the deed on the other, should both be made at a future time, it was expressly agreed that the defendant should pay the plaintiffs one hundred and fifty dollars, the amount sued for in this action, as a part of their commission, it being stated that the same was due at that time. Subsequently the parties varied the agreement, and entered into a new contract, by which the transaction was consummated, and in accordance with this last contract the deed was made.

It is not shown that plaintiffs had anything to do with the negotiations which resulted in perfecting the last contract, further than that one of them drew up the written memorandum; and they make no claim in reference thereto.

When plaintiffs demanded payment of the sum agreed to be paid in the written undertaking, defendant refused to comply, on the ground that the agreement was not carried out, and therefore he was not liable. There was a verdict and judgment for plaintiffs.

The promise in this case was not made directly to the plaintiffs, but it was contained in the written instrument executed between the persons agreeing to sell the land and the defendant, who agreed to purchase. It was an assumpsit on the part of the defendant to pay a certain debt of the sellers of the land to the plaintiff who were their creditors.

It is now the prevailing doctrine, that an action lies on the promises made by a defendant upon a valid consideration to a third person for the benefit of a plaintiff, although the plaintiff was not privy to the consideration. (Myers vs. Lowell, 44 Mo., 228; Rogers vs. Gosnell, 51 Mo., 466.) In the carefully considered case of Lawrence vs. Fox, (20 N. Y., 268) it appeared that one Holly, at the request of the defendant, loaned and advanced to him $300, stating at the time that he owed that sum to the plaintiff, for money borrowed of him, and had agreed to pay it to him the next day; that the defendant in consideration thereof, at the time of receiving the money, promised to pay it to the plaintiff the next day. Upon these facts it was held that the plaintiff for whom the promise was made might support the action. The judge who wrote the opinion of the court meets the very objection insisted upon here. He says: “It was also insisted that Holly could have discharged the defendant from his promise, though it was intended by both parties for the benefit of the plaintiff, and therefore the plaintiff was not entitled to maintain this suit for the recovery of a demand over which he had no control. It is enough...