Pohlman v. Tilden , 44 Mo. App. 569 ( 1891 )

Rombauer, P. J.

The books of account of one Reynolds, an examiner of land titles, were seized under a writ of attachment, and the plaintiff sheriff was appointed receiver under the statute. Among the items on the books were two of $10 each, and two of $5 each, for certificates of title, and the plaintiff, claiming that the defendant was legally chargeable with the payment of these items, caused bills for them to be made out against defendant. The defendant refused to pay these bills, whereupon the plaintiff brought this suit, wherein he recovered judgment.

The defendant now complains that the court erred in refusing his instruction, and that the verdict is opposed to the evidence and weight of evidence. The cause was tried by the court without a jury. The defendant’s instruction, which the court refused, raised the defense of the statute of fraud as to the two $10 items. On what conception of law this instruction was asked is not apparent, for, conceding that this is a sale of chattels, yet the amount and value of the items challenged by the instruction was only $20. On the other hand if the action were one to hold the defendant liable for the debt, default or miscarriage of another, the judgment could, not stand, writing or no writing, as even a written promise in those cases is bound to be supported by a valid consideration.

The only question submitted by the evidence for the consideration of the trial court as to these items was, as declared by the court in an instruction given of its own motion, whether the work sued for was done upon the defendant’s request, and for his account. The court upon substantial evidence decided this question in the affirmative, and, as the weight of that evidence is not for our consideration, its finding is conclusive. As to the two $5 items it suffices to say that there was evidence tending to show that the defendant had admitted his liability for them to the plaintiff’s collector upon presentation of the bill.

All the judges concurring, the judgment is affirmed.