Ellis v. Mansfield

• Decision Date: 03 December 1923
• Citation: 215 Mo. App. 292,256 S.W. 165
• Parties: ELLIS v. MANSFIELD
• Court: Missouri Court of Appeals

256 S.W. 165

215 Mo. App. 292

ELLIS v. MANSFIELD

Kansas City Court of Appeals. Missouri.

December 3, 1923.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by G. W. Ellis against Wilbur J. Mansfield, doing business as the Mansfield. Land. & Loan Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ira Burns and W. H. L. Watts, both of Kansas City, for appellant.

Walter W. Calvin, of Kansas City, for respondent.

BLAND, J.

This is an action to recover the balance due on a commission in the sale of an 160-acre farm located in Anderson county, Kan. The answer consists of a general denial and a plea of accord and satisfaction. It also includes a counterclaim for $125 and interest. The counterclaim is not now in dispute. There was a verdict and judgment for plaintiff in the sum of $1,037.01, and for defendant on his counterclaim in the sum of $139.36. Defendant has appealed.

As defendant's main contention is that the court should have given his peremptory instruction to find for him, it is necessary for us to state the evidence in its most favorable light to plaintiff. This evidence shows that the land was owned by defendant, who lived in Kansas City, Mo., and one Triplett, who lived in Garnett, Anderson county, Nan.; that defendant told plaintiff to go to Garnett and see Triplett and look at the farm, that defendant wanted to sell it and would give plaintiff one-third of the net sale price above $8,800, the cost of the farm. Plaintiff went to Garnett, met Triplett, saw the farm, came back to Kansas City, made a second trip to Garnett, again saw Triplett and the farm, and then went into a restaurant at Garnett with Triplett to eat dinner. There he overheard one Kniseley, who afterwards became the buyer of the property, talking to a man about buying a farm. Plaintiff went over and introduced himself to Kniseley and then introduced Triplett. Plaintiff testified that he was the first one to mention the farm to Kniseley on this occasion. Kniseley told plaintiff, when the latter attempted to get him interested in the farm, that he had seen all the land in that vicinity, and that it was unsuitable for his needs, in that he was in the cattle business and had to have water. Plaintiff told him that this farm had a windmill upon it which furnished plenty of water, and then quoted Kniseley the price per acre of the farm. This seemed to interest Kniseley. Kniseley said that the farm was not large enough, and plaintiff sent Triplett out to find out from the than who owned the 80 acres adjoining as to what he would take for it. Triplett returned with the information. Plaintiff induced Kniseley to stay over in Garnett and look at the farm. Plaintiff Triplett, and Kniseley drove to the farm, and plaintiff and Kniseley walked over it and examined it. They returned to Garnett, and plaintiff and Kniseley were together until train time, when they both took the train, plaintiff coming to Kansas City, and Kniseley getting off at Ottawa. Plaintiff did not see Kniseley again until after the deal was closed by Triplett with Kniseley. Plaintiff came to Kansas City and informed defendant that he had found a purchaser of the land, giving Kniseley's name.

Defendant's evidence tended to show that Triplett's efforts were the procuring cause of the sale. Kniseley, testifying for the defendant, stated that he had heard that Triplett had the farm for sale before he met plaintiff and Triplett at Garnett, but he did state that plaintiff first priced the farm to him, although Triplett met him first and was the first to mention the farm.

According to plaintiff's testimony, it was agreed that plaintiff should have one-third of the net profits of the sale of the farm, Triplett one-third, and defendant one-third. The net profit was $5,580.36, plaintiff's share being $1,860.12. After the deal was closed plaintiff demanded of defendant his share at defendant's office in Kansas City. Defendant refused to give plaintiff the full amount claimed by him but, as testified to by plaintiff;

"* * * He spoke about $930.06 being my part. says, `How do you get that?' `Well,' he says, `Ain't we fifty-fifty on commission?' I says, `Yes; but you got your fifty didn't you, you took your eighteen hundred and something out.' He says, `Yes; but half of yours is mine.' I says, `I don't know how you figure it, 'this is to be split three ways, Triplett has got his, you have got yours and now you are going to take half of mine. No; you won't do me that way.' He said that was the best he could do, and I said, `Then you won't do anything.' I said, `I'll get it a different way,' and this argument came up.

"Q. Now you may state whether or not you were declining to take the check made out there. A. I certainly was; I told him I wouldn't take it."

After this conversation defendant told his clerk to make out a check for $1,000.06, which included the $930.06 and $70.00 which had been advanced by plaintiff to reimburse a tenant on the place for certain things not necessary to mention here. Defendant then left the office, saying the would be back in 20 minutes. Plaintiff and his sons, who were with him, waited an hour, but defendant did not come back. Plaintiff then took the check, examined it to find out if it was marked "paid in full," and, finding that it was not, he had it certified by the bank and afterward cashed it. Plaintiff testified that he did not take the check in full payment of his claim, but to the effect that he took it as a credit on the amount he claimed was due him.

There is conflict in the evidence as to whether, at the time plaintiff accepted the check, there was a notation on its face to the effect that it was payment in full. The check introduced in evidence snowed that the notation was partially obliterated by the perforating stamp of the bank on which it was drawn. Defendant says that it was impossible to have written the notation on the check after the perforation. Plaintiff and his sons testified that it was not there, and defendant and his clerk testified that it was. Defendant's version of the settlement was that Triplett insisted that he anti not plaintiff was the procuring cause of the sale, and defendant contended that he did not owe plaintiff anything, but as a matter of compromise he was willing to give and did give plaintiff the sum of $930.06, or one-half of the amount claimed by him. Defendant now says that this transaction constituted an accord and satisfaction as a matter of law, and therefore his instruction should have been given. However, in discussing this point, defendant depends in part upon testimony favorable to him, given by his witnesses, and entirely overlooks the rule that all the testimony in the case, that on the part of defendant as well as that for plaintiff, together with all reasonable inferences that may be drawn therefrom, must be taken in its most favorable light to plaintiff.

Now, it might be said, with some show of reason, that an inference may be drawn from plaintiff's testimony which would tend to sustain defendant's contention. Taking plaintiff's testimony that we have quoted, supra, by itself, it might be said to show that defendant was claiming that his contract with plaintiff was that plaintiff's one-third of the profits was to be divided with defendant and that defendant offered plaintiff the sum a $930.06, being one-half of the one-third of the profit in full settlement of the controversy, saying "that was the best he could do." Now if this were the true condition of affairs, there was an accord and satisfaction, even though plaintiff told defendant that he would not take the check and accepted it under protest, as he afterwards cashed it. It is well settled that, where a debtor in good faith disputes the amount of the claim of a creditor, in other words, where the claim is unliquidated, if a cheek is tendered on condition. that it is full payment of the amount due and the creditor cashes it, there is accord and satisfaction, although the creditor protests that he does not take the check in full payment, that he is merely giving the debtor credit for the amount. Bahrenburg v. Fruit Co., 128 Mo. App. 526, 107 S. W. 440; Pollman Coal Co. v. St. Louis, 145 Mo. 651, 659, 47 S. W. 563; McCormick v. City of St. Louis, 166 Mo. 315, 65 S. W. 1038; Knapp & Co. v. Syrup Co., 137 Mo. App. 472, 478, 119 S. W. 38; Cornelius v. Rosen, 111 Mo. App. 619, 86 S. W....