Walsh v. Morse

• Decision Date: 31 October 1883
• Citation: 80 Mo. 568
• Parties: WALSH v. MORSE, Executrix, Appellant.
• Court: Missouri Supreme Court

80 Mo. 568

WALSH

v.MORSE, Executrix, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Gage, Ladd & Small for appellant.

Plaintiff's first instruction should not have been given, there being no evidence in the case that the notes of Case and Balis were taken as security. The second instruction is absolutely without evidence to support it. There is nothing in the record to show that Morse ever made any representations as to the pecuniary circumstances of Case or Balis. Plaintiff's third instruction is erroneous for several reasons. (1) There is no evidence that plaintiff had been deceived as to the solvency of Case and Balis. (2) There is no evidence that “Morse promised in writing that if the plaintiff would make efforts to collect from Case and Balis the notes, he, Morse, would pay the balance which could not be collected from them.” Morse's liability had been voluntarily released, and no obligation existed upon which to found a promise to pay. Greenbaum v. Elliott, 60 Mo 25; Valentine v. Foster, 1 Met. (Mass.) 520; Hale v. Rice,124 Mass. 292; Wharton on Cont., §§ 512, 513. (3) Even if Morse's promises to pay were made upon condition that “plaintiff would make efforts to collect,” the performance of such condition would not constitute a valid consideration.

J. W. Jenkins for respondent.

The Case notes were received by respondent as security for the original indebtedness of Morse. And Morse promised repeatedly, both orally and in writing, to pay the balance of the money borrowed, which respondent should fail to collect from Case and Balis. The petition alleges, and the evidence shows, that representations were made by Morse, and relied upon by respondent, when the notes were received, which amounted to a warranty of their collectibility. Carter v. Black, 46 Mo. 384; Hainey v. James, 50 Mo. 316. And the liability of Morse for the breach of this warranty was a sufficient consideration for these promises. And the fact that respondent made efforts to collect the notes at Morse's request, also constitutes a sufficient consideration for the new promises.

NORTON, J.

Plaintiff's petition alleged, substantially that he loaned the defendant's testator the sum of $1,180, on the 12th day of December, 1873, for which the testator, Morse, executed his note to plaintiff, payable in one year; and to secure the payment of it, executed a mortgage on certain real estate. That afterwards, plaintiff becoming dissatisfied with the security, demanded other security. That the defendant in compliance with that demand, delivered to the plaintiff two promissory notes, executed by Theodore S. Case, and John R. Balis, for $300 and $500 respectively. That to induce plaintiff to accept the notes as security for the loan, the defendant, Morse, falsely and fraudulently represented to the plaintiff, that the notes were good; Case and Balis were men of large means, owning a large amount of property, out of which the notes could be collected, and that they would be paid as soon as they became due. That plaintiff believing those statements, was thereby induced to surrender to the defendant his note, and accept the notes of Case and Balis for said loan. That the defendant's statements, as to the responsibility of Case and Balis, were false and fraudulent, and known by him to be such when he made them. That when the notes of Case and Balis became due, plaintiff brought suit on them, and obtained a judgment, and that at sundry times since that time, the defendant promised, verbally and in writing, to pay plaintiff whatever balance of the loan he should fail to collect from Case and Balis.

Defendant's answer was a general denial, and a special defense, admitting the fact of the loan of $1,180, and the making of the note, and alleging that afterward, in May, 1874, the defendant paid to the plaintiff a certain amount of money, and at the same time delivered to him two promissory notes, on which the said Case and Balis were parties; and that the said money was paid, and said notes were delivered by the defendant to the plaintiff, and the same were received by the plaintiff, in full satisfaction and payment of defendant's indebtedness on account of said loan and note first mentioned, and that said indebtedness was thereby extinguished; and that at the same time the plaintiff surrendered to the defendant, as cancelled and fully paid, the said note for $1,180. The reply was substantially a general denial. Before the trial the defendant, Morse, died, and the suit was revived in the name of his executrix.

On the trial there was a verdict and judgment for plaintiff, from which the defendant has appealed, and assigns for error the action of the trial court in giving and refusing instructions. At the close of the evidence the defendant asked the court to instruct the jury that under the pleadings and evidence plaintiff was not entitled to recover. This instruction...