Murphy v. Bedford , 1885 Mo. App. LEXIS 332 ( 1885 )

Opinion by

Ellison, J.

Prom the evidence in this case there can be no doubt whatever that the money borrowed by defendant was that of A. R. Murphy. The evidence from which the contrary conclusion is sought to be drawn, amounts to nothing. The fact that A. R. Murphy owed plaintiff, certainly did not make the money he had in bank in his own name, the money of plaintiff, conceding he intended to pay it to btm at some time.

The proposition cannot be seriously maintained. The only possible way in which this could have become the claim of plaintiff, and that defendant could have become the debtor of plaintiff, is by the conversation occurring between plaintiff and defendant, in which defendant said to plaintiff, " Uncle Reed is now claiming that the money I got from him last fall is your money ; ” plaintiff reply-, ing, "I guess it is.” Defendant stating, "thatheborrowed it from Reed, but I reckon if it is yours, yon do not have to have it.” And plaintiff, replying, “No, I guess yon never get so bard np that yon cannot raise that amount of money. ’ ’ Defendant answering, ‘ ‘ be never bad yet.” What was intended by this conversation, and as to whether it was intended as a recognition of debtor and creditor by the parties to it, and further time given on the debt by plaintiff, was properly submitted to the jury. But, conceding it was not properly submitted, we are of the opinion plaintiff had no right under his pleading to submit the question. He declares :

“For cause of action, plaintiff states that on the 23d day of October, A. D., 1880, plaintiff, at the special instance and request of defendant, loaned to the said defendant the sum of $350; that defendant promised and agreed to pay plaintiff, for the use of said money, interest at the rate of ten per cent, per annum from the said 23d day of October, 1880, until said sum as aforesaid should be well and truly paid ; plaintiff paid defendant $250 in part payment of the sum so loaned as aforesaid; that defendant still owes and is indebted to plaintiff in the principal sum of $100, with all the interest due on the said sum so loaned to defendant as aforesaid, with all the interest due thereon ; that there is now due plaintiff from the defendant the sum of $142.75.

“ Plaintiff, therefore, prays judgment for said sum of $142.75, and for all costs of this suit.

Under such pleading it is not competent for plaintiff to offer proof of borrowing of one, and several months thereafter promising that one to pay to a third party, in consideration of an extension of time from him.

There cannot be a declaration on one cause of action and recovery upon another. Clements v. Yeates, 76 Mo. 623 ; Harrison v. Ry. Co., 37 Mo. 307 ; Link v. Vaughn, 17 Mo. 585; Newham v. Kenton, 79 Mo. 385-6.

The authorities cited by appellant do not apply to the case presented here. We have examined all objections presented by him and think, them not well founded. He appeals to this court for a reversal of the cause for the reason that defendant is making a cover of legal technicalities to avoid a debt; that as he borrowed the money, and would be protected by a judgment in plaintiff ’ s favor, he should be compelled to pay. We cannot, from such consideration, avoid our duty of construing the law as we understand it. Besides, we are unable to say but that the evidence in this cause would as readily lead one to believe this suit is maintained by the present plaintiff to avoid a set-off, which appears from the evidence to exist against the party from whom the money was borrowed, as that defendant is covering under the technicalities of the law.

The judgment is affirmed.

All concur.