Rottmann v. Pohlmann

• Citation: 28 Mo.App. 399
• Parties: JOHN H. ROTTMANN, Respondent, v. HENRY POHLMANN, Appellant.
• Decision Date: 03 January 1888
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 399

JOHN H. ROTTMANN, Respondent, v. HENRY POHLMANN, Appellant.

Court of Appeals of Missouri, St. Louis.

January 3, 1888

APPEAL from the St. Louis Circuit Court, HON. SHEPARD BARCLAY Judge.

Reversed and remanded.

GEORGE W. ROYSE, for the appellant: We insist that this contract (assuming that it was made as alleged) makes Pohlmann a mere surety, and that when Rottmann took the notes from Belleville, in January, 1880, and granted him an extension of time in two instances thereon, without the consent of Pohlmann, it worked a release of the security as to this debt. Allen v. Richard, 83 Mo. 55; Springer v Kleinsorge, 83 Mo. 152. It is not contended that Pohlmann agreed to this extension of time to Belleville, or that he even knew it, or that he ever knew that Rottmann had taken Belleville's notes, until the first trial in 1883. An agreement for an extension of time between the creditor and the principal debtor discharges the surety, unless he assents to it. Ins. Co. v. Carson, 31 Mo. 218; Rucker v. Robinson, 38 Mo. 154; McCune v Belt, 38 Mo. 281; Savings Ass'n v. Helm, 57 Mo. 100. Even after judgment, an agreement to stay the execution for a specified time releases the indorser. Smith v. Rice, 27 Mo. 505. There is no consideration shown to support the alleged promise on the part of Pohlmann to stand good for Belleville's debt. He received none of the goods, nor was there anything moving from Belleville to him that could be construed into a consideration. Walther v. Merril, 6 Mo.App. 370; Tucker v. Bartle, 85 Mo. 114, 120; Glenn v. Lehner, 54 Mo. 45. If the plaintiff delivered the goods to Belleville on the faith of Pohlmann's promise to be responsible as a surety for Belleville, the promise must be in writing, or it is void. Bailey v. Trustees, 14 Mo. 499; Glenn v. Lehner, 54 Mo. 45; Deegin v. Conzelman, 31 Mo. 424. Or, whenever the undertaking is collateral to the original and continuing debt of another, as that of security or guarantor for another, it is within the statute of frauds. Brown v. Brown, 47 Mo. 130; Bissig v. Britton, 59 Mo. 204; Kratz v. Stock, 42 Mo. 351; Barker v. Scudder, 56 Mo. 272; Music v. Music, 7 Mo.App. 495; Cannman v. Brunswick, 3 Mo.App. 586; Glenn v. Lehner, supra. Or there should be a good consideration, and one beneficial to the promisor. Walther v. Merrill, supra; Browne on Frauds, 204, 209; Furbish v. Gardner, 98 Mass. 296; 2 Clarke (Iowa), 528; 12 Johns. 291; 15 Wend. 182, 343; 21 N.Y. 412; 20 Wend. 201; 21 Ala. 72. This case clearly falls within the provisions of the second clause of section 2513, Revised Statutes of 1879.

THOMAS A. RUSSELL, for the respondent: The promise must be distinctly collateral to come within the statute. 3 Parsons on Contracts, 20. " In the absence of evidence showing distinctly that the promise is collateral, it will be treated as original." 2 Story on Contracts, sec. 1437. The defendant promised to be responsible for the papers his nephew got. The court held this to be an original promise, and not within the statute. Chase v. Day, 17 Johns. 113; Flanders v. Crolius, 2 Duer 206; Post v. Geoghegan, 5 Daly 216; Hartley v. Vassar, 88 Ill. 561; Barrett v. McHugh, 128 Mass. 165. " If the goods were sold on defendant's credit, it was enough to hold him." McCoffee v. Redcliff, 3 Robertson 445. The creditor is not required to rely " exclusively" on defendant's promise. Browne on Statute of Frauds, sec. 197; 3 Parsons, sec. 20. If goods are sold on the sole credit and responsibility of defendant, although delivered to a third party, there is no liability to which that of the defendant can be collateral, and consequently it does not require a memorandum in writing. Browne on Statute of Frauds, sec. 195; Hanford v. Higgins, 1 Bennet (N. Y.) 448. " If, however, the credit is given to both jointly, as neither can be said to be surety for the other to the creditor, their engagement need not be in writing." Browne on Frauds, sec. 197, p. 227; Swift v. Pierce, 13 Allen (Mass.) 136; Gibbs v. Blanchard, 15 Mich. 292. Only when the promise is distinctly collateral, is it within the statute. 3 Parsons on Contracts (6 Ed.) 19 and 20. If a creditor trusted to one of the parties more than the other, but did in fact trust to one together with the other, it is not within the statute. 3 Parsons on Cont. (6 Ed.) 20. And the court must look to the intentions of parties. " It seems to be well settled that whether a contract comes within the provisions of the statute or not, depends wholly on the agreement. If a party agrees to be originally bound, the contract need not be in writing; but if his agreement is collateral to that of the principal contractor, or is that of a guarantee or security for another, the agreement must be in writing." Glenn v. Lehner, 54 Mo. 45; affirmed in Barker v. Scudder, 56 Mo. 275.

OPINION

LEWIS P. J.

Plaintiff sues for a balance of $284.74, due on an open account for liquors sold and delivered to John Belleville, upon the defendant's undertaking and promise to pay for same. There was a jury trial and a verdict for the plaintiff.

It appears that, prior to December 30, 1878, Belleville had for a length of time been purchasing liquors from the plaintiff on running account, and had become tardy in his payments; so that the plaintiff refused to credit him any more, without some responsible security for the accruing indebtedness. The plaintiff's testimony tended to prove that thereupon Belleville and the defendant went together to the plaintiff's place of business, where the defendant " agreed to be responsible to the amount of four hundred dollars," for any goods that the plaintiff might thereafter sell to Belleville. The plaintiff's bookkeeper thereupon wrote a memorandum of this undertaking at the top of the page containing Belleville's book account and requested defendant to sign it. The defendant refused to do so, saying that his word was as good as his writing. At that time Belleville owed the plaintiff about three hundred dollars on old account. Afterwards, he made sundry payments without giving direction as to how they should be credited, and the plaintiff applied them to the old account, so that that account was fully paid up to December 30, 1878, and a small balance was carried to the credit of the indebtedness subsequently accruing. The plaintiff testified that he gave the credit to the defendant, and that he would not have sold the goods to Belleville, but for the defendant's undertaking to be responsible for the payment. He did not intend, however, to demand payment from the defendant, until he should have found it impossible to get the money from Belleville. The defendant, testifying in his own behalf, admitted that he went with Belleville to the plaintiff's office, but denied in positive terms that he there undertook or promised anything whatsoever, or that any such conversation ever occurred, as was described by the plaintiff and his witnesses.

The court gave for the plaintiff the following instruction:

" The court instructs the jury that if they believe, from the evidence, that, on or prior to December 30, 1878, plaintiff had refused to sell Belleville goods on credit, and that defendant, Pohlmann, accompanied Belleville to plaintiff's store, on said last mentioned date, and then and there promised to be bound to the extent of four hundred dollars, and for goods thereafter to be purchased of plaintiff by Belleville; and that the goods in question were sold and delivered to Belleville on the faith of said Pohlmann's promise, then they should find for the plaintiff for the amount which they find, from the evidence, to be yet due and unpaid for such goods as were so thereafter purchased and delivered, with interest thereon at six per cent. per annum, from April 17, 1882."

And, of its own motion, the court gave the following:

" If you find, from the evidence, that defendant, Pohlmann, promised plaintiff to pay for the goods furnished to Belleville, in event Belleville himself should not pay for them, and such was the only promise made by defendant to plaintiff on that subject, then, under the statute of frauds of Missouri, you should find for defendant, as such promise could not create a liability on the part of defendant, unless made in writing signed by defendant or his agent; and in the present case, there is no evidence of such written promise."

" The memorandum of December 30, 1878, in regard to defendant (as contained in the accounts or exhibits on file in this cause) has no effect as a written promise by defendant in this cause, and does not create any liability on defendant's part to answer for any debt of Belleville."

" If you find, from the evidence, that Pohlmann made no promise to pay plaintiff for any goods to be delivered to Belleville by the plaintiff, then you should find for the defendant."

" The court declares the law to be that, on the evidence before them, defendant can, in no possible event, be held liable for any goods furnished by plaintiff to Belleville prior to December 30, 1878, or for any balance of account due at that time by Belleville to plaintiff."

We find nothing in these instructions of which the defendant can justly complain. They carefully discriminate between a primary and direct promise by the defendant, that he would be " responsible" --that is, answerable, liable to pay--for goods sold to Belleville, up to the amount of four hundred dollars, and a mere collateral undertaking to make good a credit which was to be given to Belleville. The instructions given on the motion of the court guard...