Stokes v. Mills

• Decision Date: 01 March 1913
• Citation: 154 S.W. 455,171 Mo. App. 638
• Parties: STOKES et al. v. MILLS et al.
• Court: Missouri Court of Appeals

154 S.W. 455

171 Mo. App. 638

STOKES et al. v. MILLS et al.

St. Louis Court of Appeals. Missouri.

March 1, 1913.

1. FRAUDS, STATUTE OF (§ 26) — ANSWERING FOR ANOTHER'S DEBT — AGREEMENT.

F. and son, who operated a sawmill, the product of which defendants purchased, were unable to procure feed from plaintiffs; whereupon plaintiffs wrote defendants that they would not let F. have feed on their own account, but would do so "provided we may send you an O. K.'d bill the first of each month and receive our remittance from you by the 10th," in answer to which defendants stated that F. and son had requested them to deduct from the purchase price of the lumber "such amounts as may be owing for current feed bills and pay the same to you direct"; and the letter continued: "I must, however, have approved bills from you by the fifth of each month and I can remit to you on or before the 10th." Held, that the letters should be construed as extending credit, in the first instance, to defendants, and not to F. and son, so that the statute of frauds (Rev. St. 1909, § 2783) did not apply.

2. FRAUDS, STATUTE OF (§ 26) — DEBT OF ANOTHER.

In determining whether a contract was to answer for another's debt, within the statute of frauds, the test is, To whom was the credit given? and if plaintiffs dealt with defendants alone, without giving the credit to the person to whom the goods were furnished, the case is not within the statute of frauds.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Van H. Stokes and others against Andrew H. Mills and another, doing business under the firm name of Mills Bros. From a judgment for plaintiffs, defendants appeal. Affirmed.

Bradley & McKay, of Kennett, for appellants. T. R. R. Ely, of Kennett, for respondents.

NORTONI, J.

This is a suit on an account for the purchase price of feed. Plaintiffs recovered, and defendants prosecute the appeal.

It appears that Charles H. Fletcher & Son, for whom the feed was purchased, owned and operated a sawmill in Stoddard county, and sold and shipped the lumber and shingle product therefrom to defendants Mills Bros., at Decatur, Ill. In order to operate the sawmill, it was necessary that Fletcher & Son should procure considerable feed for their horses, and plaintiffs refused to sell the same to them, because they were insolvent. Fletcher & Son informed plaintiffs that defendants Mills Bros. would pay for all feed required, as they were receiving the product of the sawmill. Thereupon plaintiffs wrote to defendants Mills Bros. on April 19th, to the effect that they would not let Fletcher & Son have feed on their own account, but would do so "provided we may send you an O. K.'d bill the first of each month and receive our remittance from you by the 10th." In answer to this letter defendants wrote plaintiffs on April 26th that Fletcher & Son had requested them to deduct from the purchase price of the lumber "such amounts as may be owing for current feed bills and pay the same to you direct." The writer then says: "I must, however, have approved bills from you by the fifth of each month and I can remit to you on or before the 10th or within a day or two after that." After having received this letter in response to that of plaintiffs, to the effect that they would not furnish Fletcher & Son feed on their own account, and only on condition they might receive remittance from defendants, by the 10th of each month, plaintiffs furnished Fletcher & Son...