Rousch v. Duff

• Decision Date: 31 October 1864
• Parties: GEORGE B. ROUSCH, Respondent, v. JOHN DUFF et al., Appellants.
• Court: Missouri Supreme Court

35 Mo. 312

GEORGE B. ROUSCH, Respondent,

v.JOHN DUFF et al., Appellants.

Supreme Court of Missouri.

October Term, 1864.

Appeal from Hannibal Court of Common Pleas.

James Carr & A. W. Lamb, for appellants.

The petition in this case shows no cause of action, and the motion in arrest of judgment should have been sustained. In the first place it must be remembered, that the written order named in the petition (as far as the petition shows) possessed none, or rather few, of the legal attributes of a bill of exchange, and therefore will not be treated with the respect due to that highly favored commercial paper. The petition avers a presentment of the order for acceptance, but nowhere avers that appellants ever accepted the same; then there is no cause of action claimed upon the ground of an acceptance. The cause of action is claimed to exist from the facts that “appellants took the said order into their possession and promised to pay the respondent on the 3d day of January, 1859, the sum of $297,” the amount called for in the order. In what consists a cause of action in those averments? There is no acceptance, though presented for that purpose, as averred; but a taking into possession and a promise to pay a simple order of a third party, without any consideration to support the promise being averred. Neither is the taking nor the retention of the order charged to have been done without the consent of plaintiff; in other words, no wrong or conversion is imputed to appellants. There the cause rests upon the promise to pay. The promise to pay, as averred in the petition, is a mere naked promise to pay the debt of a third party, without consideration or writing to support it, and is therefore void. (R. C. 1855, p. 807, § 5; 4 Barb., N. Y., 131 and authorities there cited; 6 Black. 367; Brown on Fraud, 170-1-6, and notes late edition; Carville v. Crane, 5 Hill, N. Y., 483; Gallaher v. Brunell, 6 Cow. 346; Taylor v. Drake, 4 Strob., S. C., 431; 18 Mo. 272.)

The order was presented for acceptance by plaintiff's agent; an acceptance was not made, but in lieu thereof, for reasons not stated in the petition, the order was left with appellants, they promising to pay the same at a future day. It is submitted that this promise cannot be relied upon as an acceptance, but, like all other verbal promises, it must stand or fall upon its own legal merits. Respondent had the undoubted right to demand an acceptance or a refusal, but he waived this right and changed the entire legal relations between the parties.

W. P. Harrison, for respondent.

BATES, Judge, delivered the opinion of the court.

Plaintiff states that on the 10th day of December, 1859, the defendants (John Duff and William Osborne) were copartners under the name and style of John Duff & Co. Plaintiff states that on the 10th day of December, 1858, one John McGuire and A. Swartward drew their certain order in writing and directed the same to the defendants, at Hannibal; and the said order requested said defendants to pay to the plaintiff on the 3d day of January, 1859, the sum of $297; that on said day the said McGuire and Swartward delivered said order to plaintiff, and that plaintiff on said 10th day of December, 1858, presented the same to defendants for their acceptance; that the defendants on said 10th day of December, 1858, took the said order into their possession and promised on said day to pay to plaintiff on the 3d day of January, 1859, the said sum of two hundred and ninety-seven dollars. Plaintiff states that said defendants took into their possession the said order on said 10th day of December, 1858, and have ever since retained and now do retain the same; yet the plaintiff says that said defendants did not pay him said sum of two hundred and ninety-seven dollars, or any part thereof, on the 3d day of January, 1859, or on any other day, but the same to do have wholly neglected and...