Thoms v. Greene

• Decision Date: 30 September 1840
• Parties: THOMS v. GREENE.
• Court: Missouri Supreme Court

6 Mo. 482

THOMS

v.GREENE.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

GEYER, for Appellant. 1. The promise of the defendant was not original, but collateral to pay on the default of Sefton, and within the statute of frauds. Matson v. Wharan, 2 T. R. 80; Burkmyre v. Darnal, 1 Salk. 27; Anderson v. Hayman, 1 H. Bl. 120; Jones v. Cooper, Cowp. 227; Chase v. Day, 17 Johns. R. 114; Fell on Guarantee, 31; Leonard v. Vredenburg, 8 Johns. R. 29.

2. The writing made by the defendant in this case does not express the consideration of the promise, and is therefore void. Fell on Guarantee, 43; Warn v. Walten, 3 East R. 10; Lyon v. Lamb, Fell on Guarantee, Appendix No. 3; Saundears v. Wakefield, 4 Barnw. and A. 495 (6th E. C. L. R. 531); Jenkins v. Reynolds, 3 Brod. and Bring. 14 (7th E. C. L. R. 328); Moodby v. Boothy, 11 E. C. L. R. 57, note (3); 2 Starkie, 602, note (1), p. 603; 3 Johns. R. 210; 3 East, 10, and cases above cited; 1 Phillips' Ev. 439, and 3 Bingh. 107; 3 Dallas, 415, 424. 3. Whether the promise of the defendant be within or without the statute, and whether the writing be sufficient or insufficient, the contract is in writing, and nothing not found in the writing can be considered as part of it. 2 Starkie's Ev. 81-101; 1 Phil. Ev. 437, 441; Chater v. Becket, 7 T. R. 201; Fell on Guarantee, 15. 4. The writing purporting to be a guarantee given in evidence in this case is incompetent: 1st. Because for the reasons and upon the authorities above cited it is void. 2d. Because of its variance from the contract set forth in the 4th count, and was not relevant in any other count. 2 Starkie's Ev. 1543; 1 Phil. Ev. 126: Saunders on Pl. and Ev. 960, 535, 672 to 600, 32; 1 Saunders' R. 211, n. 2; Fell on Guarantee; 1 Salk. 27; Ld. Ray. 224; Cowp. 227; 2 Wils. 141; 1 Barr, 373. 5. This cause having been tried by the court sitting as a jury on the evidence of the plaintiff, the opinions prayed for by the defendant are to be regarded as prayers of instructions to a jury. And if the court ought to have given either of them, the judgment ought to be reversed for that cause. 6. The writing signed by Greene is void, and the court ought so to have decided on the prayer of the defendant. See the reasons and authorities on the 2d point. 7. The evidence did not sustain either of the three first counts of the declaration, and the Circuit Court erred in deciding the contrary. Herrick v. Carman, 10 Johns. R. 224; Bishop v. Hayward, 4 T. R. 469; 9 E. C. L. 159. 8. The Circuit Court decided that the plaintiff was not entitled to recover on the fourth count of the declaration, but sitting as a jury afterwards disregarded its own instructions as a court, and found a verdict for the plaintiff on the fourth count. The verdict ought, therefore, to have been set aside. 9. The evidence did not support the fifth or sixth counts of the declaration, and the court ought to have given the opinion prayed for by the defendant. 1 Saunders, 211, note (2), 4 E. C. L. R. 264. 10. The verdict ought to have been set aside and a new trial granted.

SPALDING, for Appellee. 1. The paper signed by Greene was properly admitted in evidence. 2. The court properly refused to declare that paper void. 3. The court properly refused to lay down the law, that Thoms was not entitled to recover on the three first counts. 4 Term R. 470; 2 Bos. & Pul. 125; 2 Barn. & Cres. 483; 4 Mo. R. 438; 1 Mo. R. 95; Rev. Code, p. 522, § 31; 4 Mo. R. 82. 4. The court did not err in refusing to give an opinion that the issue on the fifth count should be found for Greene. 5. The issue on the 6th count was rightly found for the appellee, and the court did not err in refusing to give an instruction that it should be found for the appellant. Chitty on Bills, 79, 81-2, 485-6; 16 Johns. R. 136-7. 5 Mo. R. 525. 6. The finding for plaintiff on the common counts, and rendering judgment, if error, was for Greene's advantage, and therefore cannot be reversed. 5 Mo. R. 525.

NAPTON, J.

This was an action of assumpsit brought by Thoms against Greene, for the amount of three bills of exchange, amounting in all to $1599 99 The three first counts are on these bills, alleged to be drawn by William Thoms on one John Sefton, in favor of William W. Greene, and endorsed by said Greene to plaintiff. The counts are in the usual form, and aver acceptance, presentment for payment, and notice of dishonor, to Greene after protest. The fourth count sets out a guaranty, on the part of Greene, that the bills should be paid. The bills in this count were described to be fifteen hundred dollars, thirty-three cents. The fifth count was for work and labor, money paid, goods sold, &c., and the sixth on an account stated. Plea non-assumpsit. On the trial, the plaintiff offered in evidence the three bills of exchange described in the declaration, proved their presentment to the acceptor, their protest for non-payment and notice to the defendant. The affidavit of William Robertson established the following facts: That plaintiff sold a lot of merchandize to Sefton (the acceptor of the bills). Three drafts each for the sum of $533 33, one payable in eight months, one in eleven months, and the other in fourteen months, were executed in payment for said goods. The drafts were written by Greene, and presented by him to Thoms for his signature. Thoms objected at first to signing the drafts, stating that he preferred Greene should be drawer. Greene stated that his only motive for wishing them in that form was that he was desirous to appear on the drafts as endorser, being much indebted to the bank. But he would be responsible for the payment of the drafts at maturity, and would hold himself as liable for their payment as though he was the drawer. The goods were sold by Thoms, in the opinion of the witness, much more on the credit of Greene then Sefton. Thoms would not have sold to Sefton alone, as he knew very little of his affairs and circumstances. Greene appeared much interested in the purchase of the goods, and took a part of them himself. The said drafts were at length signed by said Thoms, endorsed by Greene, and accepted by Sefton in the presence of deponent. It was distinctly understood by all the parties, that Greene endorsed said drafts as the surety of Sefton, the acceptor. Greene was the son-in-law of Sefton. Plaintiff also offered in evidence the following paper signed by defendant: “I hereby engage that John Sefton will pay to Mr. Thoms his several drafts dated 12th April, 1833, one at eight months after date for five hundred and thirty-three dollars and thirty-three cents, payable to my order at Louisville, Ky., one of equal sum payable at eleven months after date, and one of equal sum payable at fourteen months after date making together the sum of one thousand and six hundred dollars. Cincinnati, April, 12. 1833, W. W. Greene.” This paper was objected to, but was admitted by the court. After the close of the testimony, the defendant prayed the opinion of the court: First, That the said writing of the said defendant last aforesaid set forth, was and is void. Second, That the plaintiff is not entitled to recover on either of the three first counts of the declaration. Third, That the defendant is not entitled to recover on the fourth count. Fourth, That on the evidence as aforesaid given, the issue on the fifth count of the declaration ought to be found for defendant; and also on the sixth count. The court gave the third instruction, but refused the others, and gave verdict and judgment for the plaintiff. Defendant moved the court to set aside the verdict and judgment, because the verdict was...