Albrecht v. Piper

• Decision Date: 07 July 1942
• Docket Number: No. 25831.,25831.
• Citation: 164 S.W.2d 105
• Parties: ALBRECHT v. PIPER et ux.
• Court: Missouri Court of Appeals

164 S.W.2d 105

ALBRECHT v. PIPER et ux.

No. 25831.

St. Louis Court of Appeals. Missouri.

July 7, 1942.

Rehearing Denied September 11, 1942.

Appeal from Circuit Court, Ste. Genevieve County; Taylor Smith, Judge.

"Not to be reported in State Reports."

Action by Henry Albrecht, Jr., against E. J. Piper and wife on a note and on an open account. From a judgment against named defendant's wife on the open account and against plaintiff on the note as to both defendants, plaintiff appeals.

Affirmed.

Albert S. Ennis, of Festus, for appellant.

Raymond S. Roberts, of Farmington, for respondents.

McCULLEN, Judge.

This suit was brought by appellant, as plaintiff, against respondents, as defendants, to recover the sum of $1,027.87 on a note and the sum of $123.25 representing a balance due on an open account. A trial before the court and a jury resulted in a verdict and judgment against plaintiff and in favor of defendants on the first count of plaintiff's petition, and a directed verdict in favor of plaintiff and against defendant Mrs. E. J. Piper in the sum of $123.25 on the second count of plaintiff's petition. After an unavailing motion for a new trial, plaintiff duly appealed.

In the first count of his petition plaintiff alleged that on April 28, 1938, defendants executed and delivered to plaintiff their promissory note in writing and thereby promised to pay to plaintiff or his order at St. Louis, Missouri, the sum of $1,027.87 ninety days after date, with interest at the rate of four per cent. per annum from May 2, 1938; that no part of said note had been paid. A photostatic copy of the note was attached to the petition and marked Exhibit A.

In the second count of his petition, plaintiff alleged that on April 28, 1938, and on various dates thereafter to and including June 28, 1938, plaintiff sold and delivered to defendants, at their special instance and request, goods and merchandise of the value of $193.25; that defendants paid on account the sum of $70; that on said last date there was remaining an unpaid balance of $123.25; that, although defendants were often requested to pay, they refused to pay said balance or any part thereof. An itemized statement of said account was filed with the petition and marked Exhibit B.

In their answer to the first count of plaintiff's petition, defendants admitted that they signed the note described in plaintiff's petition but alleged that it was signed as an accommodation "with the understanding at the time said signatures of the defendants were attached thereto that said note was signed to accommodate the said Henry Albrecht, Jr., and that the said Henry Albrecht, Jr., knew the said note was an accommodation note and agreed to use the note for thirty days as collateral and at the end of the thirty days to return the note to the defendants herein." The answer was sworn to by both defendants.

As to the second count of plaintiff's petition, defendant Mrs. E. J. Piper filed no answer. As to said second count, defendant E. J. Piper filed a separate answer alleging that at the time the bill for goods and merchandise described in the second count of plaintiff's petition was made it was made in the name of Mrs. E. J. Piper, who at that time owned and operated a business in St. Louis County, Missouri, and that defendant E. J. Piper had no interest, right or title in said business; that he did not order said goods and was in nowise responsible for the bill described in said count of plaintiff's petition.

The record does not disclose the filing of any reply but the case was tried as though a general denial to the answers had been filed.

It appears from the evidence that plaintiff was engaged in the wholesale liquor business selling liquors for H. Albrecht & Co., a corporation; that plaintiff's father was the president of said corporation.

Plaintiff testified that defendants executed and delivered the note in question on the date thereof; that the note was given to balance an open account then due plaintiff from defendants and represented the exact amount of said open account balance as shown by certain ledger sheets; that no part of the note had been paid; that, after the note was executed, plaintiff sold and delivered additional liquor to defendants from April 28, 1938, the date of the note, until June 28, 1938, at which time defendants owed him an additional $123.25, when he stopped making deliveries; that said last-named amount also remained unpaid; that, at the time the note was executed, defendants had just moved to a new location where they wished to continue buying goods from plaintiff, and that was the reason plaintiff asked them to give him their note to cover the old account before delivering additional goods to them. Plaintiff introduced in evidence the note and the two ledger sheets, which were marked, respectively, plaintiff's Exhibits 1, 2 and 3. He further testified that defendants were operating a tavern; that they had no credit arrangements with H. Albrecht & Co., the corporation for which plaintiff was working, but that their account was charged to Henry Albrecht, Jr. (plaintiff herein), on the company's books.

Plaintiff's Exhibits 2 and 3, the ledger sheets mentioned above, showed both the open account as of June 28, 1938, and the portion of the account covered by the note. Referring to said exhibits, plaintiff testified that the balance due from defendants on April 28, 1938, the date of the note, was the exact amount of said note; that no part of the note or interest thereon had been paid, and that the unpaid balance on the open account as of June 28, 1938, amounted to $123.25.

John Scott, secretary of H. Albrecht & Co., testified that he was familiar with the ledger sheets, plaintiff's Exhibits 2 and 3; that the amounts shown in said exhibits made up the amount of the note, $1,027.87; that there were additional charges after that; that the account against defendants was the personal account of Henry Albrecht, Jr., plaintiff, who contracted the account and to whom the account was charged on the company's books; that the deliveries were made on plaintiff's account; that defendants never established a credit account with the company; that the additional charges after the note was given showed a balance due of $123.25.

Defendants both admitted that they executed and delivered the note mentioned in count one of plaintiff's petition, but stated emphatically that it was merely an accommodation note to accommodate Henry Albrecht, Jr., their friend; that he told them he wanted to use it as collateral to get some whiskey out of a warehouse and would return the note to them in thirty days; that they did not owe plaintiff any money whatever at the time they signed the note and only owed about one hundred dollars to Albrecht & Co.; that nothing was said to them about paying the note.

With respect to count number two, defendant Mrs. E. J. Piper testified that she did not owe plaintiff anything. She further testified that she did owe Albrecht & Co. about one hundred dollars. Both defendants testified that defendant E. J. Piper had no interest in the business at the time the last purchases were made from plaintiff, and that the credit was extended to defendant Mrs. E. J. Piper and not to E. J. Piper. The latter testified that he never agreed to pay the account.

On cross-examination, defendant E. J. Piper testified that he didn't know how the sum of $1,027.87, the amount stated in the note, was arrived at; that he didn't question plaintiff about it because plaintiff was such a good friend that he signed the note when plaintiff asked him to; that his transactions had all been with Mr. Albrecht, Sr.,; that he knew Mr. Albrecht, Jr., and had business relations with him; that the latter was a salesman for his father; that he didn't ask plaintiff how he arrived at the sum of $1,027.87; that the witness didn't know that was the amount he owed plaintiff at the time the note was signed; that that wasn't the amount he and his wife owed plaintiff at that time. The witness further testified in this connection: "I don't owe him anything like that amount; I don't owe him anything; I squared up with him; * * * I cannot explain the fact that the amount of this note is the amount that was carried on this account on that date."

On cross-examination, defendant Mrs. Edna Piper testified: "I don't know what I owed Mr. Albrecht on the 28th of April, 1938." She further testified that she did not owe the company that much money, $1,027.87, but that she didn't question the amount of the note; that when she signed the note she was under the impression it was a favor to Mr. Albrecht; that she didn't question the amount. At this point the witness testified:

"Q. You didn't pay any attention to that? A. I knew how much it was.

"Q. Did that amount seem peculiar to you? A. Why worry about a few cents when it is a favor to a friend?

"Q. A thousand dollar note didn't amount to much? A. Not when you do a person a favor, no."

Further testimony was given by both defendants tending to show they did not owe plaintiff anything when the note was signed nor on the open account; that Mrs. E. J. Piper owed about one hundred dollars to the Albrecht Company on said account, but it is unnecessary to set forth such testimony in detail here.

In rebuttal plaintiff testified that he did not tell either of the defendants that he needed the money to get liquor out of a warehouse; that he did not tell them he would return the note to them in thirty days, or words to that effect; that the conversation between them was about balancing their account; that defendants were going to open a new business and he told them he could not give them any more credit; that he had to have more security; that he did not tell defendants that he wanted to use the note as collateral; that he did not use it as collateral; that he had a statement of the account with him at the time defendants signed the note, showing it was...