Stockton Bros. v. Reed

Ellison, J. This action is founded on the following promissory note: “September 20, 1892. . “When able to pay after date, I promise to pay to the order of Stockton Brothers eighty-one and fifteen hundredths dollars, for value received, negotiable and payable without defalcation or discount and without interest. “Mrs. Ella MoIllyar.” The judgment below was for defendant. It appears that the defendant is the widow of G-eorge Mclllyar and that she has intermarried with Reed. Her former husband was indebted to plaintiffs in a general store account, amounting to $181.15. A part of the account had been put into notes by Mclllyar and a part remained an open account at his death. Shortly after his death the defendant paid to plaintiffs $100 on this indebtedness, took up the notes of the deceased, and executed for the balance the note in suit. We are of the opinion the note was without consideration. 'Defendant did not owe the account and was in no way liable for it. Nor can it be said she was under a moral obligation to pay it. It has been frequently held in this state that in order for a moral obligation to constitute a consideration for a promise, there should have been some antecedent legal obliga [608] tion. Greenabaum v. Elliott, 60 Mo. 29; Musick v. Dodson, 76 Mo. 627. The rule could perhaps be better stated in this language: “A moral obligation to pay money or perform a duty is a good consideration to do so, where there was originally an obligation to pay the money or to do the duty, which was enforcible at law but for the interference of some rule of law.” Musick v. Dodson, supra; Brooks v. Owen, 112 Mo. 263. But in this case, we can not discover from the record even a moral obligation. The defendant, as before stated, did not owe the debt and the record does not justify us in stating that the court was bound to believe a state of facts which would have created a moral obligation. We consider the case of Kennerly v. Martin, 8 Mo. 698, cited by defendant’s counsel, as in point and practically decisive of this case. It was there held that a promise by the widow to pay a bill for medical attendance upon the family of the deceased during his lifetime is not founded on a consideration, was without consideration, notwithstanding a part of the bill was for attendance upon the wife and her slaves. We may concede to plaintiff, as argued by counsel, that the note on its face is such an one as imports a consideration, but that can not overturn the facts as disclosed by the records showing that, in reality, there was no consideration. An examination of the authorities cited by plaintiff, to be found in the brief, has led us to the conclusion that they are not applicable, under the view we take of the case. The judgment must, therefore, be affirmed. All concur.