Fitzgerald v. Barker

70 Mo. 685

• Court: Supreme Court of Missouri
• Decided: October 15, 1879
• Status: Published

Opinion

Hough, J. —

The petition in this case states in substance, that on the 2nd day of November, 1872, one Thomas convoyed to defendant, Barker, certain real estate subject, however, to a deed of trust thereon, previously executed by'said Thomas to secure the payment of sundry notes in said trust deed described; that the deed from Thomas to the defendant contained a clause reciting that the defendant assumed and agreed to pay the several notes so secured by said trust deed; that the defendant accepted said deed and thereunder entered into possession of the property thereby conveyed; that by virtue thereof the defendant assumed and became liable to pay the amount of said notes to plaintiff, who is the owner and holder thereof, and that said notes, specifying them, are all due and unpaid. To this petition the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action ; First, Because there was no consideration for the alleged promise, moving from the plaintiff to the defendant. Second, Because there was no privity of contract between the plaintiff and defendant. The court sustained the demurrer, and the plaintiff' having declined to plead further, final judgment was rendered for defendant. The. court of appeals reversed the judgment of the circuit court, and the defendant has appealed to this court.

It is well established in this State that a party for whose benefit a stipulation in a simple contract is made, may maintain a suit on such stipulation in his own name. Bank v. Benoist, 10 Mo. 519; Robbins v. Ayres, 10 Mo. 538; Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hutchinson, 47 Mo. 287. In the case of Rogers v. Gosnell, 51 Mo. 466, this rule was extended to covenants made for the benefit of a third person; the old rule that no one but a convcnantee can sue on a covenant being distinctly repudiated by this court in that case. In the recent case of Heim v. Vogel, 69 Mo. 529, it was directly decided that when a grantee accepts a deed poll containing a statement that the land conveyed is subject to a mortgage which the grantee assumes and agrees to pay, a promise' by the grantee for the benefit of the mortgaged-, is implied therefrom, and the grantee thereby becomes personally liable to the mortgagee for the mortgage debt. The judgment of the court of appeals must, therefore, be affirmed.

All concur.