Squires v. Hoffman

• Decision Date: 08 January 1926
• Docket Number: No. 3894.,3894.
• Parties: SQUIRES v. HOFFMAN
• Court: Missouri Court of Appeals

278 S.W. 803

SQUIRES v. HOFFMAN

No. 3894.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by A. D. Squires against Albert Hoffman. From a judgment for plaintiff, defendant appeals. Affirmed.

Hamlin, Hamlin & Hamlin, of Springfield, for appellant.

Lewis Luster and H. D. Durst, both of Springfield, for respondent.

BAILEY, J.

Plaintiff brought suit against defendant for $280 and interest, setting up in his petition, as the basis of liability, the following contract:

"Whereas Albert Hoffman is the owner of certain lots of ground located on West Atlantic Street, numbered 34, 35 and 36, block 1800, in the city of Springfield, Mo., the said lots being leased to S. H. Cramer; and

"Whereas, the said S. H. Cramer proposes to build a room on the said described lots for commercial purposes; and

"Whereas, the said S. H. Cramer proposes to purchase the materials for the said room from the A. D. Squires Lumber Co., of the city of Springfield, Missouri, and to pay for the same in $20.00 installments, monthly, at 8% per annum, beginning payments February 1, 1922, and each succeeding month thereafter until the full amount shall have been paid; `and

"Whereas, the said Albert Hoffman will be the beneficiary by reason of the construction of the said room, and the use of the materials to be used therein, the benefits derived to the said Hoffman constitute the consideration on which this contract is based:

Therefore it is agreed by and between the said Albert Hoffman as first party hereto and the A. D. Squires Lumber Co., as the second party, that the said second party shall furnish to the said S. H. Cramer materials for the construction of the room above described, for the payment of $20.00 per month, beginning the first payment February, 1922, and each succeeding month thereafter until the whole sum shall have been paid, and it is provided, that if the said S. H. Cramer shall at any payment date make default of the payment due, then the said first party hereto shall become liable for the remainder of the debt due and shall then assume liability, and make each and every payment in such manner and at such times as the said S. H. Cramer should have done until the remainder of the debt shall have been paid to the said second party.

"The amount of materials to be furnished for the room above mentioned shall not exceed three hundred dollars.

"The first party hereby binds himself, his heirs, successors or assigns to all the terms of this agreement.

"Entered into this the 5th day of December,

                A. D. 1921.                   Albert Hoffman
                                               "First Party
                                           "A. D. Squires
                                              "Second Party."
                

Defendant, by his answer, alleged that he was a conditional guarantor by the terms of the contract, and liable only on default of S. H. Cramer in making the payments provided by the contract; that in March or April, 1921, plaintiff notified him Cramer was making the payments provided by the contract set out in plaintiff's petition, and did not notify him to the contrary until July, 1922; that from February 1, 1921, to July 1, 1923, Cramer was solvent; that defendant only guaranteed a material bill not to exceed $300, whereas the bill exceeded that amount.

On the issues thus joined the cause was tried before the court without a jury, resulting in judgment for plaintiff for $324.80, being the principal sum of $280, plus interest, from which judgment defendant has appealed.

Appellant assigns as error that—

"The judgment is not supported by the evidence or the law, and should have been for the defendant because under the evidence he was a conditional guarantor, and therefore entitled to notice of Cramer's default, especially so because plaintiff sold Cramer to the amount of $363.88, when defendant only agreed to guarantee payment of $300, and plaintiff did not notify him of said excessive amount."

There is no question in this case about the fact that plaintiff, doing business as the A. D. Squires Lumber Company, furnished material to S. H. Cramer for a building on the lots of defendant described in the contract heretofore set out, and that the material bill amounted to more than $300. Plaintiff, however, has charged defendant on the basis of $300, and allowed a credit of $20 for the only payment made by Cramer. There was also a written contract between defendant and Cramer relative to the erection of the building to be built on defendant's lots and occupied by Cramer, but, as we view this case, It has no bearing on the issues raised, and need not be further considered.

Defendant seems to take for granted that there is no evidence in this case tending to prove plaintiff notified him that Cramer was in default. The evidence for plaintiff shows that, after the contract was entered into in December, 1921, the material was furnished, and the first payment became due February 1, 1922. Cramer defaulted, but paid $20 in March, 1922. He made no further payments. Plaintiff testified he notified defendant on May 1, 1922, that Cramer was not waking his payments. He also stated he calked to defendant about the matter on several other occasions. Defendant offered evidence tending to prove that plaintiff's wife or bookkeeper assured him in March, 1922, that...