Musick v. Richardson , 6 Mo. 171 ( 1839 )

Opinion of the Court delivered by

Tompkins Judge.

Musick and wife brought their action of assumpsit in the circuit -court- against Richardson, where judgment being given against them they appealed to-this court.

The facts of' the case preserved in the bill of exceptions and material to be considered, are these:

William Jamison of St.-Louis died possessed of certain lands which by order of the circuit court of St. Louis1 county were directed to be sold and the proceeds of the sale to be distributed among the representatives of' the .deceased.— By agreement among the representatives of the deceased. Richardsonj who had married one of the daughters of the deceased, became the1 purchaser of the land, which, by said ■ agreement, was to be sold by him at a convenient time for the benefit of all the representatives of the deceased, Mu-sick had married Phcobe one of those representatives, no consideration was proved other than that necessarily and naturally arising from the contract.

Richardson afterwards coveyed .this land to William G. Pettis in order to secure a debt due to George Collier, and -afterwards sold the same land to. John M. Jamison, one of the representatives, subject- to the encumbrance above men"tioned. The purchaser agreeing to pay to the other repre-' sentatives of William Jamison their respective portions-of •the purchase money. In pursuance of this agreement betwixt Richardson and John M. Jamison, said 'Jamison executed to Music a note for the portion of the purchase ■ money which was-due to Musick in right of his wife, and ' this contract betwixt Richardson and Jamison being after-wards rescinded, Musick delivered up to Jamison the note which Jamison had as above mentioned made and delivered to him, and it. was cancelled.

Some time after Richardson again sold the'land t'o Jame-son on the same conditions. Soon after this second purchase, Jamison'informed Musick, plaintiff in’the circuit court and appellant here, of .the purchase and the terms - and withal promised to.-pay him the part of the purchase - money due in right of his wife. Musick did 'not-then!make any objection but soon afterwards informed Jamison ho would not take-him 'for the money but would -look to Richardson and iao other person, for his wife’s portion. It was proved that Johíi M. Jarfiison after the second purchase made by him had paid all the representatives their portions except Mu-, sick. On this evidence the court instructed the jury 'there was no evidence of any. money had and received by the defendant to the use of the plaintiff, upon, which this action can be sustained. The instruction was excepted to and a new trial prayed because of the instruction given..

A.died pos. sensed of cer-Whi0h, by or-were directed “seftativei among the re-deft^whohad married- one of tho daughters of deceased, became the purchaser-, of tho land, and was to sell tho same for tho benqfit.of all the representatives.. Defendant, in pursuance of this agreement sold the land to one J.. Held that under this-state of facts an action of assumpsit for money had and ‘received’ ceuld 'he maintained against deft, in favor of plaintiffs, representatives, in part* of deceased, for there- distributive share/ of the proceeds.

It is clear that Richardson had sold the land and if he did not receive money he ought to have received it, for.it does not appear that he sold on. a credit; had he sold on a credit the representatives must certainly have waited till he could collect. But it appears that money was collected, and that five out of six of'the representatives had received their ■ share. Music and u >io were certainly entitled to their distributive share of iim part coUecled, even if a .credit had been given for the rest. But this is not .pretended. It remains then only to enquire whether Richardson, can extricate himself from the responsibility he .had -incurred by undertaking to sell this land for- the benefit of himself and the other representatives of the deceased by.sending John M* Jamison his vendor to tellMusiek of the second'sale of the land by Richardson to himself,, and to promise to pay sick and wife their share of. the purchase money. . T.o state the case, is. of itself, a sufficient answer to-.the .enquiry.— When a man makes himself liable to pay money he -must either pay it, or givg something else which the.payee cepts’ in satisfaction, or he must be released'-from, his liability by writing under seal; it isnot.in. evidence, that even assented, to-take the promise, of Jamison-as tion- of Richardsons liability;. The .circuit court then in my opinion committed error in. giving that instruction to jury’, and should therefore have granted' a. new- trial.. Its is therefore reversed and the .cause remanded.