Buckwalter v. Craig

• Decision Date: 31 January 1874
• Citation: 55 Mo. 71
• Parties: JACOB BUCKWALTER, Respondent, v. JAMES CRAIG, Appellant.
• Court: Missouri Supreme Court

55 Mo. 71

JACOB BUCKWALTER, Respondent,

v.JAMES CRAIG, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Jackson Circuit Court.

Karnes & Ess, for Appellant.

Twiss & Cook, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff, who resides in the State of Iowa, brought his action against the defendant, in the Jackson County Circuit Court, on a judgment, which he obtained in that State. The defendant, in his answer, pleaded payment of the judgment and a reply was filed, putting the fact of payment in issue, and this was the only issue joined in the cause. At the trial the defendant did not attempt to prove payment of the entire judgment, but endeavored to establish a credit of $1,500 on the same. From the facts disclosed in the bill of exceptions, the following are substantially the circumstances, from which the credit is claimed:

In 1869, the plaintiff, who resided near Mt. Pleasant, Iowa, sent his brother-in-law, Jacob Kauffman, who lived near the same place, to Kansas City, where the defendant resided, to get the money on the judgment, or to bring suit upon it. Kauffman called upon Craig, the defendant, and informed him, that he had come to get the money on the judgment. Craig said, that he had no money on hand, but proposed to give Kauffman an order on Charles Hendrie of Burlington, Iowa, who was indebted to Marsh & Craig, a firm composed of James E. Marsh and the defendant; and, in reply to Kauffman's objections in regard to the solvency of Hendrie, stated that Marsh would go up to Iowa shortly and attend to the matter, and that Marsh would be able to induce Hendrie to pay the order. Kauffman then returned to Iowa and waited for a week or ten days until Marsh came to Mt. Pleasant, and then arranged with Marsh to go to Burlington and see Hendrie. He went, accordingly, and failing to meet Marsh on the train, or at Burlington, called on the son of Hendrie, who was doing business for his father, who took up the order, and gave therefor two notes of the senior Hendrie for $750.00 each, drawn in favor of the plaintiff. Kauffman received these notes, stating at the time, that he would not take them as payment on the judgment, but that he was willing to credit their amount on the judgment, when the notes were paid; and that he would submit the notes to Marsh for approval of these terms. He returned to Mt. Pleasant that evening, and met Marsh on the train as he returned; told Marsh what he had done and showed him the notes. Marsh said, that if he kept the notes he must take them as payment and credit them on the judgment, to which Kauffman replied, that he would not do so; that he had no authority to take notes, or anything else except money, on the judgment. He then gave up the notes to Marsh, who handed them back and agreed to meet him at the bank in Mt. Pleasant the next day and settle the matter.

The next day he met Marsh on the street, who went with him to the clerk's office and examined the record to see the amount of the judgment. While there, Marsh again attempted to persuade him to credit the judgment with the amount of the notes, which he again refused to do, and gave as before, as a reason for not doing so, that he had no authority for doing it. They then went together to the National State Bank of Mt. Pleasant, when Marsh took...