Caneer v. Kent

• Decision Date: 17 August 1938
• Docket Number: 35833
• Citation: Caneer v. Kent, 119 S.W.2d 214, 342 Mo. 878 (Mo. 1938)
• Parties: B. C. Caneer, Appellant, v. T. B. Kent and Senter Commission Company, a Corporation
• Court: Missouri Supreme Court

119 S.W.2d 214

342 Mo. 878

B. C. Caneer, Appellant, v. T. B. Kent and Senter Commission Company, a Corporation

No. 35833

Supreme Court of Missouri

August 17, 1938

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

L R. Jones and McKay & McKay for appellant.

(1) The note sued on has been fully paid off and discharged. 25 C. J 341; State v. Thompson, 120 Mo. 12; Wynne v. Hammond, 37 Ill. 103; Nagel v. McFeeters, 97 N.Y. 106; In re Gulic, 186 F. 350; Owen v. Talcott, 188 F. 401. (2) It is the duty of a cotton factor, commission merchant or agent to exercise a reasonable degree of care, skill and diligence in his employment, the same degree of care, skill and diligence which a prudent person would exercise in his own business. 25 C. J. 357; Wynne, etc., Co. v. Schanabaum, 78 Ark. 402, 94 S.W. 50; Milwaukee Natl. Bank v. City Bank, 103 U.S. 668, 26 L.Ed. 417; Rice v. Brook, 20 F. 611; Bennedict v. Inland Grain Co., 80 A. 449; Bernette v. Hoekaday, 61 A. 627. (3) As in the case of other agents, it is the duty of a cotton factor in all transactions affecting the subject matter (cotton) to act with faith and loyalty for the protection and advancement of the interest of his principal. 25 C. J. 358; Sterneman v. Smith, 100 F. 600; Bennedict v. Inland Grain Co., 80 A. 449; Dunison v. Aldrich, 114 A. 700, 91 S.W. 1024; 2 C. J. 692-714; Witts v. Strom, 136 Mo. 470.

Henry C. Walker for respondents.

(1) The note sued on has not been paid and the burden of proof is upon plaintiff to establish same. Johnson v. Ragan, 265 Mo. 420, 179 S.W. 159; Kemble v. Rosenberger, 79 Mo.App. 253. (2) The final settlement on June 7, 1915, between Senter Commission Company and the Caneer Store Company, with full knowledge of the Caneer Store Company, by statements rendered of account stated annually for the preceding years, and at the time of giving of the note in suit for $ 18,000 on June 7, 1915, merged and extinguished all alleged claims and choses in action by the Caneer Store Company against the Senter Commission Company for alleged excessive interest, insurance, storage charges and refunds. 25 C. J. 375; 2 C. J. 363; Columbia Brewing Co. v. Bervey, 90 Mo.App. 96; Powell v. Pacific Ry. Co., 65 Mo. 658; McCormack v. Sawyer, 104 Mo. 36; Mulford v. Caesar, 53 Mo.App. 263; Alexander v. Scott, 150 Mo.App. 213. (3) The insurance-storage charges and interest charges made by Senter Commission Company were with the full knowledge, consent, assent, agreement and acquiescence of said Caneer Store Company as disclosed by the testimony and could not be claimed by the Caneer Store Company itself. 25 C. J. 356-357; 2 C. J. 363; Smith v. Jefferson Bank, 120 Mo.App. 527, 97 S.W. 247; Scrivner v. Am. Car & Foundry Co., 330 Mo. 439, 50 S.W.2d 1014; 25 C. J. 375; 2 C. J. 693; Gotcher v. Haefner, 107 Mo. 270, 17 S.W. 967. (4) The Senter Commission Company made full disclosure to the Caneer Store Company of all the facts touching such privilege of Refunds and the only way to secure such benefit to the Caneer Store Company in 1913. 25 C. J. 357; 2 C. J. 693; Smith v. Jefferson Bank, 120 Mo.App. 527, 97 S.W. 247; Gotcher v. Haefner, 107 Mo. 270, 17 S.W. 967. (5) The Caneer Store Company knew of its own knowledge of such custom. 2 C. J. 363; 25 C. J., pp. 356, 357, 363, 693.

OPINION

Tipton, J.

Appellant filed her petition in the Circuit Court of Dunklin County, Missouri, and by her action she sought to enjoin the foreclosure of a parcel of real estate situated in that county and to cancel a note and a deed of trust on same. On a change of venue, the cause was sent to the Circuit Court of Butler County, and that court rendered a judgment in favor of respondents.

Appellant became the purchaser of all the assets of the Caneer Store Company in July, 1927, at a bankruptcy sale.

On June 7, 1915, the Caneer Store Company executed its promissory note for $ 18,000, due January 15, 1916, secured by a deed of trust on real estate located in Senath, Missouri, and payable to the Senter Commission Company of St. Louis, Missouri, respondent. T. B. Kent is the trustee named in the deed of trust.

The Caneer Store Company was organized as a corporation September 19, 1904, and was engaged in the retail mercantile business in Senath, Missouri. It bought cotton in that locality and shipped it to the Senter Commission Company in St. Louis and they sold it. The Senter Commission Company made advancements to the Caneer Company in various amounts at different times. The note in question was given to take up the indebtedness which the Caneer Company owed respondent, which amounted to approximately $ 9000, leaving the balance in respondent's hands. Later, drafts were honored by respondent in various amounts, and at one time the Caneer Company owed it an open account of nearly $ 48,000. This was eventually paid by the sale of cotton, and on February 2, 1920, there was a balance due the Caneer Company of $ 5864.97, which was on that date credited on the $ 18,000 note. The foreclosure was started on November 14, 1930.

It is admitted that appellant stands in the same position as the Caneer Company. Other pertinent facts will be stated in the course of this opinion.

I. First, it is the contention of appellant that the note was fully paid by overcharges on interest and insurance which respondent charged the Caneer Company, and also by the failure of respondent to get the Caneer Company proper credits for freight rebates from April 27, 1905, to February 2, 1920. We are convinced that the substantial evidence in this case fails to sustain appellant in this contention, but because of the view we take of this case, it will not be necessary to discuss this evidence because the note was given in payment of all indebtedness prior to June 7, 1915. If appellant were correct in her contention in regard to the overcharges of interest and insurance premiums subsequent to that date, the amount would not be sufficient to pay the note. The giving of the note made an account stated between the parties for indebtedness prior to that date.

"'When parties, having mutual matters of account between them, growing out of a contract, deliberately account together and state a balance, and the party who, on such accounting, is found indebted to the other pays the debt or gives a written obligation for its payment this settlement is so far conclusive between the parties that it cannot be reopened or gone into, either at law or in equity, except upon clear proof of fraud, or mistake, or of an express understanding that certain matters were left open for future adjustment.' [Pickel v. St. Louis Chamber of Commerce Assn., 10 Mo.App. l. c. 194. See, also, Knox v. Whalley, 1 Esp. 159; Bull v. Harris, 31 Ill. 489; Lee v. Reed, 4 Dana, 111; Hodges v. Hosford, 17 Vt. 615; Darlington v. Taylor, 3 Grant's Cases, 195; Martin v. Beckwith, 4 Wis. 220; Gibson v. Hanna, 12 Mo. 165; Cogswell v. Whittlesey, 1 Root, 384; Sergeant v. Ewing, 36 Pa. St. 156; Nicholson & Co. v. Pelanne Bros., 14 La. Ann. 508.]" [McCormick v. Transit Ry. Co., 154 Mo. 191, l. c. 201.]

As the above authority shows, this account stated cannot be set aside except for fraud or mistake. Appellant does not attempt to set it aside on either ground, but, on the contrary, ratifies the settlement by trying to prove payment of the note. Moreover, if the issue of fraud were before us in setting aside this account stated, the evidence would not be sufficient to sustain appellant's contentions.

In regard to the rebates of freight charges, W. T. Caneer, vice president and general manager of the Caneer Company testified that he knew of the practice in such regard in the year 1913. A. A. Caneer, in regard to the overcharges on interest, testified that "I figured the account at the legal rate of interest of the State of Missouri, six percent," while the evidence showed that the agreed rate of interest on the notes and open account was at a higher rate. Respondent rendered a statement to the Caneer Company at regular intervals showing the interest and the insurance premiums charged. No complaints were ever made in regard to these statements until after February 2, 1920; in fact, on August 8, 1911, the Caneer Company wrote respondent that "we have your statement which agrees with our books exactly as we figure it." The record shows other similar expressions of approval of the statements rendered by respondent. It follows that appellant's contention of payment cannot be sustained.

II. Appellant's other contention is that the note is barred by the Statute of Limitations. The foreclosure was started November 14, 1930, and appellant concedes that the running of the Statute of Limitations was arrested that date. Subsequent to the execution of the note, business relations continued between the Caneer Company and respondent until February 2, 1920, during which time respondent advanced large sums of money to the Caneer Company which were referred to in the record as an open account. At one time the Caneer Company owed respondent approximately $ 48,000 in this account, in addition to the note in question. On June 27, 1916, the Caneer Company sent some notes payable to it to respondent as collateral for its indebtedness. The letter transmitting these notes reads as follows:

"We take the liberty of sending you some notes for you to hold as collateral until our cotton sells. But when the cotton sells, unless it leaves us owing you more than the note you hold we want these notes returned if we owe you more than that then these notes can remain. . . ."

It is conceded that the open account was closed on February 2, 1920, leaving a balance in the hands of respondent of $ 5864.97 due the Caneer Company, who directed that it be given as credit on the note.

Appell...