Frazer v. Miller

• Decision Date: 30 December 1893
• Citation: 35 P. 427,7 Wash. 521
• Court: Washington Supreme Court
• Parties: FRAZER v. MILLER ET AL.

35 P. 427

7 Wash. 521

FRAZER v. MILLER ET AL.

Supreme Court of Washington

December 30, 1893

Appeal from supreme court, Pierce county; Frank Allyn, Judge.

Action by H. Frazer against Drew Miller and A. J. Miller. From the judgment, A. J. Miller appeals. Reversed.

Dunbar C.J., and Anders, J., dissenting.

W. W. Likens and Ira A. Town, for appellant.

Heilig & Hartman, for respondent.

SCOTT J.

The defendants, from July 1, 1889, to March 6, 1890, were engaged in conducting a livery-stable business under the firm name of Miller & Son. The plaintiff worked for them during this time and earned $490. At the latter date, A. J. Miller sold out his interest in said business to his son Drew Miller, who assumed the debts of the firm, and Frazer continued to work for the son from March 6 till August 31 1890, and earned $352. The son was treasurer and bookkeeper for the copartnership during its existence, and made all payments of wages, and he paid plaintiff various sums of money during said time, amounting to $193, and, after the dissolution of said firm, he made payments to him amount to $399. No receipts were given therefor. If the total of these payments-$592-be applied to the partnership debt, it overpaid Frazer's claim against the firm by $102. If the payments made by Drew Miller after the dissolution of the firm be applied to the wages earned by plaintiff while working for him individually, then this individual debt would be satisfied; and if the balance of $47, together with the $193 paid during the existence of the copartnership, be applied to the firm indebtedness to the plaintiff, a balance of $250 is left, and for this amount he sues, with interest from March 6, 1890, the date of dissolution. The case was tried by a jury, who brought in a verdict for the plaintiff, and the defendant A. J. Miller appealed. Most of the facts in the case are undisputed. All the payments in question were made after the dissolution of the firm, without any application thereof by the debtor. It is contended that the plaintiff applied sufficient of the payments upon the partnership account to satisfy the same, and it is also contended that if no application of said payments was made by the plaintiff at the time he received them, he had no right to apply the same thereafter in satisfaction of the individual indebtedness, and that the law would apply them to the older claim. The authorities cited by the appellant upon this last proposition are not directly in point, many of them applying to a case of continuing account between the same parties, and in such a case the law would apply the payments to the older claims. Plaintiff contends that he applied the payments made subsequent to the dissolution of the copartnership, at the time they were received, upon the individual indebtedness. The testimony is not very clear as to this, however, but it does appear therefrom that he asked Drew Miller to settle up the old account at one of said times, and that he said he would wait and see his father about it. There is testimony to show that, when the plaintiff quit working for Drew Miller, he asked him to make out a bill to show him what was coming to him, and that said Miller, instead of making out an itemized bill, gave him a statement of the balance, which is as follows: "Due Harry Frazer, ($300.00,) three hundred dollars, for labor. Drew Miller." It is further contended that the plaintiff subsequently brought suit against Drew Miller for the whole of said claim, but that he afterwards discontinued it, and brought the present action.

Appellant alleges the following errors: First. That the court erred in sustaining plaintiff's objection to the defendants' offer in evidence of the papers and files in said former action. It is contended by the respondent that this question cannot be considered, because said papers were not made a part of the statement of facts, and, not being here, it would be impossible to say whether they were properly excluded. The record in relation to this matter is as follows: "Q. Look at this paper, if you please, and I will ask you if a paper of that description was served upon you, which is the summons in the case 4,573 in this court. A. Yes, sir; a paper of this description was served on me. Q. Turn it over, and see if you can tell about the date. Mr. Heilig: We will admit that such a suit has been brought and dismissed. Q. Is the claim for which this action No. 4,573 was brought the same claim for which this due bill was executed by you on the 31st of August, 1890? (Objected to, as immaterial and irrelevant.) Court: Let that go in. Simply make the records show that the offer is to show that. (Objection sustained, and exception allowed.) Col. Likens: We offer to show by the witness that the obligation or the demand sued upon in the case No. 4,573, entitled 'H. Frazer against Drew Miller,' in this court, is the same demand for which this duebill, now offered in evidence as the defendants' Exhibit A, was given. (Objected to, on the ground that the plaintiff is not suing on the duebill. It is irrelevant and immaterial. Objection sustained, and exception allowed.) Col. Likens: We now offer the papers in the case No. 4573, entitled 'H. Frazer against Drew Miller,' for the purpose of showing the application of the payments, as made by the plaintiff himself, that were made after the 5th day of March, 1890. (Objected to, as immaterial and irrelevant. Objection sustained, and exception allowed.)" No authorities were cited by either party, and the only case we have found upon the subject is Williams v. State, 127 Ind. 471, 26 N.E. 1082, where it is held that documents offered in evidence and excluded must be made a part of the...