Young v. Ledford

• Decision Date: 27 April 1903
• Citation: 74 S.W. 443,99 Mo. App. 565
• Court: Missouri Court of Appeals
• Parties: YOUNG et al. v. LEDFORD.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 443

99 Mo. App. 565

YOUNG et al. v. LEDFORD.^*

Court of Appeals at Kansas City, Missouri.

April 27, 1903.

MAIL ROUTES — CONTRACTS — STATUTE OF FRAUDS — ORIGINAL PROMISE — JUSTICE OF THE PEACE — INTERPOSING DEFENSE — DEMURRER TO EVIDENCE—INSTRUCTIONS.

1. The defense of the statute of frauds is available to defendant under a plea of the general issue.

2. In an action by a justice of the peace, where no pleadings are filed, the defense of the statute of frauds may be raised for the first time at the trial by objection to evidence; defendant's appearance being equivalent to a plea of the general issue.

3. Where a contract sued on is fully established by oral evidence received without objection, defendant cannot interpose the statute of frauds as a defense by an objection at the close of the evidence in the nature of a demurrer thereto.

4. Where plaintiffs contracted to carry mail over a mail route, of which defendant's son was a subcontractor, and, on becoming apprehensive that payments under the contract would not be made, defendant, who was surety for his son, promised to pay plaintiffs for completing the contract, an instruction that, though plaintiffs had entered into a written contract

with defendant's son, yet if thereafter they entered into a verbal contract with defendant, and the service was performed under such verbal contract, defendant would be liable, was proper.

Appeal from Circuit Court, Putnam County; P. C. Stepp, Judge.

Action by Richard Young and another against G. F. Ledford. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

N. A. Franklin, for appellant. J. W. Magee and D. F. Calfee, for respondents.

SMITH, P. J.

W. M. Brevard entered into a contract with the United States for the transportation of the mail on route No. 4,516 for the period of two years. Brevard sublet this contract to H. W. Ledford, and the latter, by a written contract, further sublet it to the plaintiffs. The plaintiffs' evidence tends to prove that between ten days and two weeks after they (the plaintiffs) had entered into said contract, and had been carrying the mail under it, they became apprehensive that the quarterly payments of $125 provided in the contract would not be paid when due, or at all; and this they made known to the father of the subcontractor—defendant herein—who entered into a verbal agreement with them substantially the same as that entered into by them with H. W. Ledford, the contractor. One of the plaintiffs testified that the defendant promised "to make the quarterly payments himself; to see that they were paid for the carrying of the mail every ninety days." The plaintiffs carried the mail over the said route for 90 days, and then demanded payment therefor of both H. W. Ledford and the defendant; and, as neither made payment, they—plaintiffs—began this action by filing before a justice of the peace the following statement: "G. F. Ledford, Dr., September 30, 1901, to January 1, 1902, for work, to wit: Commencing October 1, 1901, to make the round trip from Martinstown, Mo., to Unionville, Mo., 6 times per week for three months, for the sum of one hundred and twenty-five dollars, which the defendant agreed to pay the plaintiffs; the plaintiffs having performed their part of said agreement, and made the said round trip as above stated, and the defendant having failed and refused to pay the said amount, or any part thereof. Therefore plaintiffs ask judgment for the sum of $125." There was a trial, which resulted in judgment for the plaintiffs, and defendant appealed.

At the conclusion of all the evidence the defendant requested an instruction in the nature of a demurrer thereto, which was by the court refused; and of this, complaint is made. The plaintiffs' theory of the case seems to be that they entered into a verbal contract with defendant for carrying the mail over said route for $125 per quarter, and that they had performed the contract on their part— that is to say, they had carried the mail for the quarter specified in their statement—and that the defendant...