Waggoner v. Davidson

• Decision Date: 03 April 1915
• Docket Number: No. 1466.,1466.
• Citation: 189 Mo. App. 345,175 S.W. 232
• Parties: WAGGONER v. DAVIDSON.
• Court: Missouri Court of Appeals

175 S.W. 232

189 Mo. A. 345

WAGGONER v. DAVIDSON.

No. 1466.

Springfield Court of Appeals, Missouri.

April 3, 1915.

Rehearing Denied April 21, 1915.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by P. R. Waggoner against Mrs. Laura Davidson. Judgment far plaintiff, and defendant appeals. Reversed.

G. Purd Hays, of Ozark, for appellant. Barrett & Moore, of Ozark, for respondent.

STURGIS, J.

The defendant's minor son made his first business venture by forming a partnership (?) with one Garrison and engaging in the restaurant business. The plaintiff, a groceryman, sold goods to this firm on credit, and in this way the debt now sued for had its origin. Presently the firm became insolvent, and plaintiff was about to sue the firm by attachment, and thereby take steps to seize and subject what property the firm had to the payment of his debt. The theory on which plaintiff seeks to hold defendant liable is that, on his informing defendant of his intention to bring suit by attachment against her son and his partner, she induced him not to do so for the time being by promising verbally to see him later and pay the debt. Plaintiff says that, in consequence of this promise, he did not bring suit until the next day, and in the meantime another creditor had attached. Nothing is shown as to the value of the goods which plaintiff says he might have attached and refrained from so doing, nor what was done under the other attachment. Later plaintiff brought this suit in a justice court against the mother and son on a statement filed as for goods sold to them. After the evidence was all in, the plaintiff dismissed the case in the circuit court as to the son, and in open court released him from all liability for the debt sued on.

The evidence clearly shows that the defendant had no interest in the restaurant business in which her son was an alleged partner, and she in no way contracted this debt or induced plaintiff to sell goods to such firm for either partner, nor did she receive any benefit therefrom. She was a complete stranger to the whole transaction other than the alleged promise to pay the debt which had been contracted some time prior thereto. The defendant, however, positively denied making any such promise.

The defendant raised, by an instruction refused, and now insists on the statute of frauds as being a complete defense to this action. This being an action begun before a justice of the peace, where pleadings are not required, no question can be made but that the defendant could raise this defense without pleading it. We are not intimating, however, that an instruction is not sufficient to raise the point in most cases. Schmidt v. Rozier, 121 Mo. App. 306, 98 S. W. 791.

As before stated, there is a flat contradiction between plaintiff and defendant, the only parties who knew anything about it, as to whether defendant did or did not make the promise sued on to answer personally for a debt in no way her own but clearly that of another. The very purpose of the statute of frauds is to prevent just such controversies as this and to prevent frauds and perjury by requiring all such promises to be in writing in order to be binding on the promisor. Unless, therefore, this case presents some exception to the general rule, plaintiff cannot recover.

Certainly the defendant is not an original promisor as to this debt, as suggested by plaintiff in citing Steele v. Ancient Order of Pyramids, 125 Mo. App. 680, 103 S. W. 108. The goods were sold and consumed before defendant was ever consulted as to the debt thus contracted. She had nothing to do with creating it. Where one person induces another to sell goods to a third person on the promise of such first person to pay therefor, then the seller may treat such first person as an original promisor to whom credit was given in selling the goods (Newton Grain Co. v. Pierce, 106 Mo. App. 200, 80 S. W. 268; Chick v. Frey Coal Co., 78 Mo. App. 234; Price v. Railroad, 40 Mo. App. 189; 20 Cyc. 180), but that is far from this case.

Nor can defendant's liability be predicated on the ground of a consideration having passed directly to defendant as promisor. For sentimental reasons, or from the very highest moral motives, the...