Wittenberg v. Fisher
| Decision Date | 05 May 1914 |
| Citation | 166 S.W. 1106,183 Mo.App. 347 |
| Parties | CHARLES H. WITTENBERG, Respondent, v. HARRY R. FISHER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Chas. Claflin Allen Judge.
AFFIRMED.
Judgment affirmed.
Frank A. C. MacManus for appellant.
(1) Appellate courts have uniformly extended great flexibility to pleadings in cases commenced before justices, but when such pleading is amended in the circuit court, the latter act must be in conformity to the rules maintaining in such jurisdiction and any modification of the initial contract must be pleaded. Lanitz v. King, 93 Mo. 513; Sims v. Fields, 24 Mo.App. 557. Plaintiff does not declare on any second contract or new promise, thus he must recover on the original account or not at all. Brescheisen, v. Caffey, 15 Mo.App. 80; Taussig v. Land Co., 124 Mo.App. 220. The failure to set out in the amended petition the acts of defendant as to the appropriation of the payment of the $ 3.90, and to fail to declare on the modified contract (Wilden v McAllister, 91 Mo.App. 453), if one exists, as to Harry R. Fisher becoming the obligee of another person by a promise in writing the circuit court does not obtain jurisdiction over the res unless new promise is specially pleaded. The "amended account" filed in the St. Louis circuit court does not state a cause of action against Harry R Fisher as an obligee to pay the debts of another. G. S., Secs. 2783, 2784; Cash v. Clark, 61 Mo.App. 636; Moore v. Mount Castle, 61 Mo. 424. (2) A promise without consideration to pay the debt of another, when it does not appear that the promisor is in anywise indebted on his own account to the promisee must be in writing, or else will be void under the Statute of Frauds. Moore v. Railroad Co., 31 Mo.App. 145; Rottmann v. Pohlmann, 28 Mo.App. 399. In this case, the amended petition does not declare on a new promise to pay in writing or otherwise. Chidsey v. Powell, 91 Mo. 627; Chambers v. Rubey, 47 Mo. 99; Carr v. Hurlbert, 41 Mo. 267; Martin v. Braham, 86 Mo. 643.
Carl Otto for respondent.
This appeal is wholly without merit. Plaintiff sued defendant upon an account and recovered judgment for the amount claimed. From this judgment defendant prosecutes the appeal. A jury was waived and the trial had before the court.
There are no instructions in the record for review, save one offered by defendant and refused, through which the court was requested to declare that plaintiff was not entitled to recover under the law and the evidence.
It appears plaintiff is in the wholesale liquor business, and defendant conducted a saloon at Grand avenue and Natural Bridge road in the city of St. Louis. Plaintiff testifies positively that he sold the liquors and other items of account to defendant personally during that year and they were delivered at his saloon above mentioned. Moreover, the record is replete with evidence to the effect that defendant time and again promised plaintiff to pay the account, but put him off from time to time because, it is said, he was in "hard luck." After the account had been running for several years and no payment made thereon, plaintiff personally called at defendant's saloon with a view of collecting it. Upon defendant's asking a further extension thereon, plaintiff requested him to make a payment on the same in order to keep it alive, so as to prevent the running of the Statute of Limitations. Thereupon defendant personally paid plaintiff $ 3.90 in cash, to be credited for the purpose stated. The credit was duly entered as of the date the payment was made, March 19, 1906, by cash, and thereafter it is said defendant promised to execute notes for the balance, payable at $ 25 per month, but did not do so. Finally, the account was placed in the hands of plaintiff's attorney for collection and plaintiff says defendant offered to confess judgment thereon, but afterwards refused to do it. Defendant admits that he never repudiated the account nor refused to pay it, but insisted from time to time that plaintiff should not "push him" thereon. Concerning the matter of confessing judgment, the following question to and answer by defendant in his testimony appear: Defendant admits, too, that on August 16, 1910, he wrote plaintiff a letter as follows, concerning the subject-matter involved here, for this was the only matter pending between them:
"Harry R. Fisher, Cafe and Pool Room,
Southeast Corner Grand & Natural Bridge Road.
St. Louis, 9/16/10.
Charles Wittenberg.
On the part of defendant, it is said he does not personally owe the account, in that it was charged on plaintiff's books to Fisher Brothers and that he wrote this letter to plaintiff on being urged to pay it, with a view of "stalling off a suit" thereon. The evidence for defendant tends to prove that Fisher Brothers owned a saloon in the same neighborhood at Spring avenue and Natural Bridge road, and another one of plaintiff's brothers owned a saloon at Grand avenue and Natural Bridge road, but that defendant was not interested in either at that time, though he shortly thereafter succeeded to the ownership of the place at Grand avenue and Natural Bridge road. Because plaintiff's bookkeeper entered the items of the account in his books at the time the sale was made as charges against the account of Fisher Brothers, it is insisted by defendant that he is not indebted therefor. But the evidence for plaintiff is to the effect that the items of the larger portion of the account involved here were purchased personally by plaintiff as and for himself, and the others on his order, to be delivered at his place of business at Grand avenue and Natural Bridge road. Plaintiff testifies positively that he knew defendant, Harry Fisher, well and that he did not know his brothers and had no business relations with them whatever. The evidence seems to greatly preponderate in favor of the view that the goods sued for were sold directly to this defendant and were delivered to him and, indeed, his own evidence and course of conduct during the several...
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