Scottish Rite Temple Assn. v. Lucksinger

• Decision Date: 01 February 1937
• Docket Number: No. 18755.,18755.
• Citation: 101 S.W.2d 511
• Parties: SCOTTISH RITE TEMPLE ASSOCIATION OF KANSAS CITY, MISSOURI, APPELLANT, v. CLARENCE W. LUCKSINGER, RESPONDENT.
• Court: Missouri Court of Appeals

101 S.W.2d 511

SCOTTISH RITE TEMPLE ASSOCIATION OF KANSAS CITY, MISSOURI, APPELLANT, v. CLARENCE W. LUCKSINGER, RESPONDENT.

No. 18755.

Kansas City Court of Appeals. Missouri.

February 1, 1937.

Appeal from the Circuit Court of Jackson County. — Hon. Albert A. Ridge, Judge.

REVERSED AND REMANDED.

I. Frank Rope and I.G. Kaplan for appellant.

Goodwin Creason and Harold E. Marshall for respondent.

REYNOLDS, J.

This is a suit by the plaintiff against the defendant upon the following instrument of writing, executed by the defendant to the plaintiff, for the recovery of the amount subscribed and promised to be paid therein:

                                                             "Kansas City, Mo
                                                             "_______, 1926
                

"In consideration of the subscriptions made by others, and to help provide funds for the erection of a new Scottish Rite Temple in Kansas City, Missouri, I hereby subscribe and promise to pay to the Scottish Rite Temple Association of Kansas City, Mo. or order the sum of One Hundred and fifty ____ Dollars ____ in 12 equal quarterly installments beginning January 1st, 1927 ____.

                                                    "[Signed] C.W. Lucksinger."
                

It was instituted before Louis J. Mazuch, a justice of the peace within and for Kaw township, Jackson county, Missouri, by the filing of a petition or statement on June 4, 1935. There is no written denial by the defendant of the execution of the instrument of writing verified by affidavit. In fact, the execution of the same is admitted by the defendant. He, however, makes the contention of a failure of any consideration therefor and sets up the same as a defense.

Upon the trial before said justice, the plaintiff recovered a judgment. From such judgment, the defendant prosecuted an appeal to the Circuit Court of Jackson County, where, upon a trial before the Honorable Albert A. Ridge, judge of said court, without a jury, a judgment was rendered for the defendant. From such judgment in favor of the defendant, the plaintiff prosecutes this appeal.

Upon the trial in the circuit court, the plaintiff introduced the instrument in writing sued upon and, without offering any other or further evidence, rested its case. The defendant did not offer any evidence on the trial in support of his contention that there was no consideration for such instrument; he submitted his case without the offer of any evidence whatever.

The plaintiff contends that, the defendant having failed to offer any evidence in support of his claim of a lack of consideration for the written instrument sued upon, there is no issue as to the lack of consideration in the case and that the written instrument is a direct promise to pay money at a certain time and in a specified manner and, in itself, imports a consideration and cites Section 2958, Revised Statutes 1929, in support of such contention.

Such statute is as follows:

"All instruments of writing made and signed by any person or his agent, whereby he shall promise to pay to any other, or his order, or unto bearer, any sum of money or property therein mentioned, shall import a consideration, and be due and payable as therein specified."

It has been held that such section applies equally to negotiable and nonnegotiable written promises [Trustees of Christian University v. Hoffman, 95 Mo. App. 488, 69 S.W. 474; Maxwell v. Harroun (Mo. App.), 180 S.W. 933] and that under such section, in any case in the absence of any affirmative proof to the contrary, the law will import a consideration for the promise, even though one be not recited in the writing; that, in the absence of evidence upon the point, it will be presumed that there was a sufficient consideration; and that it is for the party denying the existence of such a consideration to show that there was none. [Smith v. Ohio Millers' Mutual Fire Ins. Co., 330 Mo. 236, 49 S.W. (2d) 42, and authorities therein cited.]

It has been held that such statute is all inclusive and applies to any and all written contracts for the payment of money or property. [Smith v. Ohio Millers' Mutual Fire Ins. Co., supra.]

The phrase "import a consideration" as used in such statute means that a consideration is presumed in the absence of any evidence on the point. [Smith v. Ohio Millers' Mutual Fire Ins. Co., supra.]

The defendant contends that such statute does not apply to writings wherein a consideration is recited on the face thereof, but only to writings wherein no consideration is recited. He insists that no consideration will be imported where one is actually named in the instrument and that it is only in the absence of the recital of a consideration in the instrument that one is to be imported by the statute.

The statute is all inclusive and applies to all written instruments for the payment of money, whether a consideration be named therein or not. In instances where a consideration is stated, it imports that such consideration as stated is genuine and sufficient or that some other consideration exists therefor until the contrary is shown.

The defendant insists that, in this case, the written instrument sued upon shows upon its face that it is a mere voluntary promise to donate something in the future; that the alleged consideration therein named is not any consideration whatever under the law; that the instrument itself shows that the defendant received nothing for his promise; that the plaintiff did not suffer any loss on account of that promise; that the instrument itself, on the face thereof, furnishes the evidence of the lack of any consideration therefor and, such being the case, he is not required to furnish further evidence; and that the instrument, in itself being a mere promise to make a donation in the future without consideration, lacks legal validity and can not be enforced.

It is true that it is essential to a gift that it go into effect at once. If it regards the future, it is a mere promise and, being a promise without consideration, can not be enforced. [School District of Kansas City v. Sheidley, 138 Mo. 672, 40 S.W. 656; Spencer v. Vance, 57 Mo. 427.]

That the note of a donor to a donee is not the subject of a gift is well-settled law. Such a note is but the promise of the donor to pay money in the future. The gift is not completed until the money is paid. There is no delivery of the gift but a mere promise to deliver it in the future. Such a note, treated purely as a gratuitous promise, can not be enforced, either in law or in equity. [School District of Kansas City v. Sheidley, supra; Spencer v. Vance, supra.]

However, such a gratuitous promise may be converted into a valid and enforceable contract, at least where made to a public or charitable institution or the trustees therefor for the promotion of a public or charitable purpose, if, before it is withdrawn, the promisee performs some act,...