Sisney v. Arnold

• Citation: 28 Mo.App. 568
• Parties: WILLIAM SISNEY, Respondent, v. J. T. ARNOLD, Appellant.
• Decision Date: 17 January 1888
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 568

WILLIAM SISNEY, Respondent, v. J. T. ARNOLD, Appellant.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from Ozark Circuit Court, HON. J. R. WOODSIDE, Judge.

Reversed and remanded.

W. J ORR, for the appellant: The petition states no cause of action in favor of the plaintiff, and against the defendant--it alleges that defendant assumed to pay the debt of another, and does not show that such contract was in writing or based upon any consideration, moving from plaintiff to defendant. While the plaintiff is not required to plead the facts which show a contract valid under the statute of frauds, still section 3560, Revised Statutes, does require the instrument to be filed, if there is such, with the petition; and a failure to do so is an admission that no writing did exist. There was an entire failure of proof; and under section 3702, Revised Statutes, defendant was entitled to judgment. Green & Myers' Plead. and Prac., secs 475, 477, 478, and 479, pp. 184-5; Beck v. Ferrara, 19 Mo. 30.

LIVINGSTON & PRICE, for the respondent.

OPINION

LEWIS P. J.

The petition charges that " defendant, J. T. Arnold, assumed to pay to plaintiff for one Wilson Griffith, of the county of Ozark, and state of Missouri, on the twenty-second day of September, 1882, the sum of two hundred dollars, for value received by sad Griffith, with interest until paid to plaintiff, at the rate of ten per centum per annum. Plaintiff further states that the same is still due and unpaid by defendant, amounting to two hundred and forty-eight and thirty-three one-hundredths dollars, principal and interest, for which plaintiff asks judgment, with costs of suit." The answer is a general denial. The cause was heard by the court sitting as a jury. The following is a literal copy of the bill of exceptions:

" Be it remembered that, on the trial of this cause, had at the October term, 1885, of this court, on the sixth day thereof, the following proceedings were had and done, to-wit The plaintiff, to support the issues on his part, introduced evidence tending to show, that, about twelve months prior to the commencement of this action, one James Hood was indebted to plaintiff in a sum near the amount sued for by plaintiff; that a trade was negotiated between Hood and one Wilson Griffith, whereby Griffith assumed to pay plaintiff said money; that before the payment of said debt by Griffith to plaintiff, another trade was negotiated between Griffith and one R. S. Small, whereby Small assumed to pay plaintiff said amount; that these various contracts were made with the assent of plaintiff, and he agreed to and did release all parties from the payment of the debt, except Small; that defendant and Griffith each owned a house and town lots in Gainesville and they exchanged property with each other, and each agreed to convey to the other his respective property; that, before the conveyances were made, and after the change of possession, Griffith sold his house and lots to Small (that is, the house and lots he had received from defendant, Arnold), but had not yet received a deed from Arnold for said property; that, for the purpose of securing the debt sued for, it was understood between plaintiff,

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