Clark v. Marbourg
| Decision Date | 10 April 1885 |
| Citation | 33 Kan. 471,6 P. 548 |
| Parties | R. M. CLARK v. W. W. MARBOURG |
| Court | Kansas Supreme Court |
Error from McPherson District Court.
ACTION by W. W. Marbourg against R. M. Clark and John F. Appleby, as partners, doing business under the firm-name and style of R M. Clark & Co., brought February 15, 1883, in the district court of McPherson county, to recover $ 1,467.58 together with interest thereon from September 22, 1882. The petition, among other things, alleged that on September 22 1882, R. M. Clark & Co. were indebted to the Western Hardware Co. in the sum of $ 1,467.58 for merchandise before that time sold to them by said hardware company, and that the plaintiff Marbourg was assignee for value of such indebtedness. The separate answer of R. M. Clark was, first a general denial; second, that after such indebtedness contracted prior to September 1, 1882, the defendant and the hardware company had an accounting and settlement, and there was found to be due from them to the company the sum of $ 539.22, which sum, on September 22, 1882, was paid, and upon such payment the company gave a receipt in full of all indebtedness up to September 1, 1882. As to the remainder of said indebtedness, the answer alleged that after the date to which such settlement and accounting were made, they purchased other merchandise from the hardware company, to the amount of $ 476.36; that the sum had not been paid, because on different days between October 11th and 17th, 1882, the defendants were garnished by various persons having actions pending against the company, and required to answer in the district court of Atchison county, Kansas, in respect to such indebtedness; and that they had, as required, answered in all said cases that they were indebted to the company in the sum of $ 476.36; that they have not been discharged as such garnishees, and they never had any notice of the assignment of their indebtedness to the plaintiff. To this answer, a reply was filed, containing, first, a general denial; second, that if there was an accounting and settlement and full receipt given, as defendant claimed, such settlement was made and such receipt executed without the knowledge, consent or authority of the hardware company, and defendant knew he owed more than the amount covered by such receipt. The reply further alleged that all the eases in which the defendants were garnished had been disposed of, and that they were discharged from liability as such garnishees. Trial had before the court without a jury, at the October Term for 1883. The court made a general finding in favor of the plaintiff and against the defendant, and entered judgment for the plaintiff in the sum of $ 1,542.74, together with costs. The defendant excepted, and brings the case here.
Judgment affirmed.
Doster & Bogle, for plaintiff in error.
Barker & Pancoast, and J. D. Milliken, for defendant in error.
OPINION
It is alleged on the part of plaintiff in error, defendant below, that the only issuable fact in this case under the pleadings regarding the indebtedness sued for up to September 1, 1882, was, had there been an accounting between the parties, an agreement as to the amount due, the payment of such amount, and the execution thereupon of a receipt in full? Upon this theory, it is urged that the defendant in error, plaintiff below, was not entitled to recover upon the account, and that the admission of any evidence tending to show errors or mistakes in the books of account was incompetent and irrelevant.
As the defendant's answer contained a general denial, it was incumbent upon the plaintiff, first, to prove the indebtedness alleged in his petition, and to do this it was proper for him not only to show that the goods and merchandise sued for were ordered and delivered to the defendant, but to explain the charges in the original books of account kept by the Western Hardware Company.
The burden of the proof was upon the defendant below to establish the settlement of the account between himself and the hardware company. There was evidence for and against. The court found against the defendant, and we think there was evidence sufficient to sustain the finding. It is urged, however, that the evidence adduced before the trial court showed conclusively the account between the parties had been stated; that the balance found due upon settlement had been paid, and that a receipt had been given in full. To support this, it is asserted that there was a dispute between the hardware company and defendant as to the amount due up to September 1, 1882; that about the last of August or the first of September, 1882, the company sent Mr. Schlicter, its traveling salesman, to defendant for the purpose of checking up and settling the account; that it was then agreed between the salesman and defendant that the account was incorrect; that defendant told Schlicter he was willing to pay $ 639.22 as a settlement of the account; that Schlicter left without making a settlement, admitting that the account was incorrect; that defendant then sent to the hardware company $ 100, and in a few days thereafter received from the company the following statement:
In account with Western Hardware Co., 516 and 518 Commercial St.
That defendant at once returned his note for $ 539.22, inclosed in the following letter:
And that on Sept. 22, 1882, the company returned the following answer thereto:
The trial court was the judge of the credibility of the witnesses and the weight of the evidence; and with the finding of the court against, the defendant, we may assume that the evidence did not show that Schlicter visited defendant to check up and settle the account about the last of August or the first of September. The evidence of plaintiff below was that Schlicter left the employ of the hardware company August 1, 1882. His conversation with defendant must have been prior to that date, if he had anything to do with examining or settling the account while in the employ of that company. It appears, however, that the defendant ordered and received goods from the company between August 1, 1882, and September 1, 1882. Therefore there was no checking up or settling of the account of that month. This also shows that there was no examination or settlement of the account between Schlicter and defendant up to September 1, 1882. Again, after the erroneous charge against the defendant of $ 338.12 and the erroneous credits of $ 933.22 and $ 51 in favor of defendant were corrected upon the account books...
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