Winn v. Hillyer , 43 Mo. App. 139 ( 1891 )

Ellison, J.

All the instructions offered by defendant were refused. It will be observed that the statement of plaintiff’s cause of action is not well drawn; that it is somewhat ambiguous ; especially when considered in connection with his instructions which appear to have covered the whole case. If this action had originated in the circuit court, and the statement had stood there for the petition, we should have been inclined to adopt defendant’s theory here urged, viz., that the evidence and instruction were a deviation from ,the allegations. But in view of the liberal dealings with such matters, when originating in a justice’s court, we will not so rule. It does appear to be in doubt whether defendant has first stated that Sterritt & Hillyer owed him for work which they failed to pay, and on account of which he quit work, and that thereupon said firm agreed that if he would resume work they would pay him thereafter promptly and would, in consideration of such resumption of work, also pay him what they already owed him by reason of being hired by Hamilton, their superintendent. But from the whole paper it sufficiently appears, for the purpose of admitting evidence, to the effect that Hamilton was plaintiff’s debtor up to the time he quit work, and that, in consideration of continuing or resuming work (in which defendant’s firm was interested), the firm, through Sterritt, agreed to pay Hamilton’s debt, and would thereafter become paymasters themselves. The testimony sustained this theory.

The statute of frauds is, however, interposed. But we think it is not applicable. Here the promise to pay Hamilton’s debt is made in consideration of a benefit accruing directly to the promisor. The payment of Hamilton’s debt is not promised for Hamilton’s sake, but for a purpose of, and a benefit to, Sterritt & Hillyer. The payment of Hamilton’s debt is really an incident to the main purpose. Walther v. Merrill, 6 Mo. App. 370; Calkins v. Chandler, 36 Mich. 324; Clifford v. Luhring, 69 Ill. 401; Crawford v. Edison, 45 Ohio St. 239.

II. This promise was made by defendant’s partner and we will concede the proposition that one partner ■cannot make a promise to pay the debt of another which will bind the firm. But in this case as we have seen the promise, while having an incidental relation to Hamilton’s debt, its purpose and object was for the advancement of the partnership interests. It was within the scope of Sterritt’s authority as a partner to bind the firm for work in, about or upon the partnership interests; and, if in order to obtain service, and in consideration of services for the partnership, the promise was made for the firm, it binds the firm.

The foregoing view perhaps disposes of all refused instructions offered by defendant. We have examined them in detail, and fail to discover any error affecting the merits of the case, and affirm the judgment.

All concur.