Moore v. Kansas City, Springfield & Memphis Railroad

Missouri Court of Appeals

Moore v. Kansas City, Springfield & Memphis Railroad

31 Mo. App. 145, 1888 Mo. App. LEXIS 158

DecidedMay 10, 1888

StatusPublished

This text of 31 Mo. App. 145 (Moore v. Kansas City, Springfield & Memphis Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moore v. Kansas City, Springfield & Memphis Railroad, 31 Mo. App. 145, 1888 Mo. App. LEXIS 158 (Mo. Ct. App. 1888).

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Opinion

Ellison, J.

Plaintiff, a merchant, furnished supplies to one Strang, a contractor who was constructing a portion of defendant’s roadbed in Wright and Webster counties. Defendant’s contract with Strang provided for its rescission upon certain contingencies. The contract was rescinded on July 6, 1882, by a written agreement in which, as a part of the consideration thereof, defendant assumed the payment of certain debts owing by Strang, among them the sum of nine hundred dollars, due to plaintiff from Strang. There was a provision in this agreement in these words: “ It is not pretended that the above bills are exact in amounts. But it is understood that payments will not be made in excess of the sums stated.” It seems that Strang owed plaintiff $342.31 more than was assumed in this agreement, and it is for this latter sum, that plaintiff institutes this [149]*149action against defendant. An instruction in the nature of a demurrer to the evidence was sustained, and plaintiff appeals.

It will be observed that defendant is being sued for the debt of Strang, and the question is, has plaintiff shown by'the evidence that such debt has become that of defendant?

We will not enter into a detailed statement of ¿the evidence,, but rest content by stating that an examination thereof, as it has been preserved, satisfies us that the court’s action on the instruction was correct. The written agreement between defendant and Strang provided for Strang surrendering his contract of construction, delivering up the roadbed, and releasing defendant from all liability thereunder, the consideration being the sums of money already paid Strang, and the assumption by defendant of certain specified debts owing by Strang, among the number nine hundred dollars, owing to plaintiff. This nine hundred dollars was paid to plaintiff as agreed, and if we should go so far as to say there was evidence to support a further agreement on defendant’s part made afterwards, to pay Strang’s debt, we can find no sufficient consideration upon which to base it. Again, if the promise to pay plaintiff be conceded, it was but the promise to pay the debt of another and should have been in writing. But plaintiff seeks to avoid this trouble by the assertion, that when ‘one undertakes to pay the debt of another and by the same act also pays his own debt, which was the motive of the promise, the undertaking is not within the statute and. need not be in writing, such case being rather a party’s promise to pay his own debt, than an,undertaking to pay the debt of another. This is a correct statement of the law, but to be applicable to this case, it should be shown that defendant was indebted to Strang, which has not been done.

Our opinion is, the judgment should be affirmed, and it is so ordered.

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Ellison, J.

Plaintiff, a merchant, furnished supplies to one Strang, a contractor who was constructing a portion of defendant’s roadbed in Wright and Webster counties. Defendant’s contract with Strang provided for its rescission upon certain contingencies. The contract was rescinded on July 6, 1882, by a written agreement in which, as a part of the consideration thereof, defendant assumed the payment of certain debts owing by Strang, among them the sum of nine hundred dollars, due to plaintiff from Strang. There was a provision in this agreement in these words: “ It is not pretended that the above bills are exact in amounts. But it is understood that payments will not be made in excess of the sums stated.” It seems that Strang owed plaintiff $342.31 more than was assumed in this agreement, and it is for this latter sum, that plaintiff institutes this [149]*149action against defendant. An instruction in the nature of a demurrer to the evidence was sustained, and plaintiff appeals.

It will be observed that defendant is being sued for the debt of Strang, and the question is, has plaintiff shown by'the evidence that such debt has become that of defendant?

We will not enter into a detailed statement of ¿the evidence,, but rest content by stating that an examination thereof, as it has been preserved, satisfies us that the court’s action on the instruction was correct. The written agreement between defendant and Strang provided for Strang surrendering his contract of construction, delivering up the roadbed, and releasing defendant from all liability thereunder, the consideration being the sums of money already paid Strang, and the assumption by defendant of certain specified debts owing by Strang, among the number nine hundred dollars, owing to plaintiff. This nine hundred dollars was paid to plaintiff as agreed, and if we should go so far as to say there was evidence to support a further agreement on defendant’s part made afterwards, to pay Strang’s debt, we can find no sufficient consideration upon which to base it. Again, if the promise to pay plaintiff be conceded, it was but the promise to pay the debt of another and should have been in writing. But plaintiff seeks to avoid this trouble by the assertion, that when ‘one undertakes to pay the debt of another and by the same act also pays his own debt, which was the motive of the promise, the undertaking is not within the statute and. need not be in writing, such case being rather a party’s promise to pay his own debt, than an,undertaking to pay the debt of another. This is a correct statement of the law, but to be applicable to this case, it should be shown that defendant was indebted to Strang, which has not been done.

Our opinion is, the judgment should be affirmed, and it is so ordered.

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Bluebook (online)

31 Mo. App. 145, 1888 Mo. App. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-kansas-city-springfield-memphis-railroad-moctapp-1888.