Flanagan v. Hutchinson

47 Mo. 237

• Court: Supreme Court of Missouri
• Decided: January 15, 1871
• Status: Published

Opinion

Currier, Judge,

delivered the opinion of the court.

This cause was appealed from the Circuit Court by the plaintiff. It is objected that the record fails to show a final judgment. The suit was dismissed on motion, and the court thereupon rendered judgment in favor of the defendant for costs, and awarded execution accordingly. The judgment, as shown by the record, was informal; it ivas, nevertheless, final. The case was definitely disposed of and out of court. .There was nothing further for the court to do in. respect to it.

In the progress of the cause a demurrer to the petition was sustained, and the plaintiff excepted and stood upon his exception. The sufficiency of the petition is, therefore, up for consideration. It shows, in brief, that the plaintiff sold a quantity of wheat to one Hesse for a given sum; that Hesse sold the same wheat, with other property, to the defendant, and that the defendant thereupon, in consideration of said sale, promised Hesse to pay his (Hesse’s) debt to the plaintiff, and that the defendant in fact did pay the larger portion of said debt to the plaintiff, as he had agreed to do. This suit is brought to recover the unpaid balance.

It is objected that the petition fails to show a consideration for the defendant’s promise to pay Hesse’s debt to the plaintiff. The sale of the wheat by Hesse to the defendant, averred in the petition, was a good and sufficient consideration for the promise; and it was decided in Meyer v. Lowell, 44 Mo. 328, that the party for whose benefit the promise, in such a case, is made, may sue upon it in his own name. Nor ivas it necessary that the promise should be in writing. (Howard v. Coshow, 33 Mo. 118; Besshears v. Rowe, 46 Mo. 501.)

The demurrer was improperly sustained, and the judgment will be reversed and the cause remanded.

The other judges concur.