Wilson v. Vass , 54 Mo. App. 221 ( 1893 )

Rombauer, P. J.

— This action was instituted before a justice of the peace on a statement containing two causes of action, one on an open account for labor and material, the other on an indebtedness evidenced by writing. Upon the trial of the cause in the circuit court, the plaintiff recovered a verdict on both causes of action. The defendant complains on this appeal that error has intervened in the trial of the second cause of action, and that the recovery thereon was unwarranted.

Before the final submission of the cause in this court, it was shown to us by affidavits filed by the respondent that the bill of exceptions embodied in the transcript was so embodied without legal warrant, as the bill originally filed was a mere skeleton, and did not have a report of the testimony attached to it when signed by the trial judge. We, thereupon, on the authority of Crawford v. Spencer, 92 Mo. 498, Roberts v. Bartlett, 26 Mo. App. 611, and Tipton v. Renner, 105 Mo. 5, [ordered the bill of exceptions tobe stricken from the files. The only question remaining for our consideration is, whether any errors.are shown by the record proper which demand a reversal of the judgment. Touching the plaintiff’s first cause of action, no errors of record are claimed; but it is claimed that the statement of his second cause of action is insufficent to support a recovery.

That statement is as follows: “And for another' and different cause of action plaintiff states that, on the fifteenth day of March, 1887, one David Matthews was indebted to Marshall Wilson in the sum of $15.75, and defendant Nelson Yass was indebted to said Matthews in a like or greater sum, and, at the special instance and request of defendant Nelson Yass, plaintiff, Marshall Wilson, accepted from said David Matthews •an order on said Nelson Yass for said sum of $15.75. That said defendant wrote said order from Matthews to plaintiff on himself, and agree to pay it.- That said order for $15.75 has been lost or mislaid, and for that reason is not filed herewith. That the same has never been paid, and said sum is now'due and owing to plaintiff from defendant, for which he asks judgment.”

This statement shows a complete contract of novation, and charges a direct promise by the defendant to pay his own debt. As such a promise need not be in writing (Holt v. Dollarhide, 61 Mo. 433), the objection that the statement is insufficient in not charging an acceptance in writing is untenable. We must presume in support of the judgment that the evidence was sufficient to support a recovery on that theory.

The judgment is affirmed.

All concur.