New York Store Mercantile Co. v. Chapman

BLAND, P. L. The petition alleges that defendant is indebted to it (a corporation) in the sum of $239.80 for goods, wares and merchandise sold and delivered by it to one J. M. Foster, and in one and the same count seeks to charge defendant for the goods on two theories. First, that Foster had theretofore transferred and delivered to defendant certain real estate and personal property in consideration that defendant should from the proceeds of the sale of said property, pay certain claims against Foster which he had as an attorney-at-law for collection and for further advances to be made and paid on other claims due from Foster, and that the goods sold by plaintiff to Foster were sold and delivered on the promise and agreement of defendant that he would pay for the same in ninety days or sooner, if he could sell certain of the personal property transferred to him by Foster, to wit, railroad cross ties and stave bolts, a,nd second, that the goods were sold and delivered to Foster upon the express promise of defendant that he would pay for same in ninety days. The petition nowhere alleges that defendant had sold or realized any money on any of the real or personal property transferred to him by Foster for the payment of Foster’s debts, nor is it directly alleged anywhere in the petition that the goods were sold and delivered to Foster solely on the defendant’s credit, or that the credit was actually given to him. Defendant objected to the introduction of any [620] evidence, on the ground that tbe petition failed to state any cause of action; this objection was overruled. The plaintiffs evidence was beard, at tbe close of which tbe court at tbe request of defendant gave a peremptory instruction to find tbe issues for tbe defendant, whereupon plaintiff took a nonsuit witb leave. Its motion to set aside tbe nonsuit was overruled, and tbe appeal was taken. Por convenience we will designate these causes of action as first and second paragraphs. There was some evidence tending to prove some of tbe allegations in tbe first paragraph, but there was no evidence, nor was there any allegation, directly averring or by inference deducible from anything that was alleged, tbat tbe defendant bad realized anything by sale or otherwise on tbe ties and stave bolts, or tbat be had converted them. Proceeding, as does this paragraph, on tbe theory tbat tbe agreement was to pay out of the proceeds of tbe sale of tbe ties and stave bolts, it was incumbent on plaintiff tbat it both aver and prove a sale of tbe ties and stave bolts, or a conversion by defendant; bis contract as set out in this paragraph was not to pay generally and in any event, but to pay out of a special fund, and it was to this fund only and solely tbe plaintiff could look to defendant for payment. McGee v. Larramore, 50 Mo. 425; Crowell v. Plant, 53 Mo. 145; Pettis County v. Kingsbury, 17 Mo. 479; Campbell v. Polk County, 49 Mo. 214. There was therefore a failure of both averment and proof to authorize a recovery on tbe first paragraph of tbe petition, and this was properly taken from tbe jury. In support of tbe second paragraph tbe evidence tends to prove tbat plaintiff’s salesman first went to Foster and took bis order for tbe goods, but tbat be would not let Foster have tbe goods without tbe cash or tbe guarantee of some solvent person for their payment; tbat Eoster then informed tbe salesman of tbe arrangement be bad made witb defendant to take bis ties, etc., and pay certain debts and [621] make further advances, and requested him to see defendant, that the salesman went to defendant, and that defendant told him to let Foster have not to exceed $250 worth of goods, and that he would pay for them in thirty or sixty days, if he could sell the ties and stave bolts, but would in any event pay for them in ninety days; that the salesman then sent the order for the goods to his house, indorsed “guaranteed by S. M. Chapman,” and that the goods were thereupon shipped to Foster. It was also in evidence that plaintiff had refused before this to sell Foster goods except for cash. This evidence tended to prove an original promise on the part of Chapman to pay for the goods, and that plaintiff parted with its goods on the faith of this promise, and that the credit was given solely to Chapman. If this be so, then the contract was not within the statute of frauds, and Chapman is bound as an original promisor. Kansas City Sewer Pipe Company v. Smith, 36 Mo. App. 608; Penninger v. Reilley, 44 Mo. App. 255; Gill v. Reed, 55 Mo. App. 246. But it is not directly averred in the second paragraph of the petition that sole credit was given the defendant for the goods, yet from the statement made therein that the “goods were sold and delivered to Foster by plaintiff upon the express promise and agreement of the defendant to pay plaintiff for them,” the inference is reasonably deducible that they were sold and delivered on the sole credit of defendant, and we hold that the allegations contained in the second paragraph and such others as are reasonably deducible from the language employed, is sufficient to support a judgment after verdict, and as there was substantial evidence in support of this paragraph, it was error to take it from the jury. Roberts v. Walker, 82 Mo. 200; Lycett v. Wolff, 45 Mo. App. 489; Young v. Shickle Iron Co., 103 Mo. 324. The judgment is reversed and the cause remanded. All concur.