Friedman v. Griffith

• Decision Date: 11 June 1917
• Docket Number: No. 12483.,12483.
• Citation: 196 S.W. 75
• Parties: FRIEDMAN et al. v. GRIFFITH et al.
• Court: Missouri Court of Appeals

196 S.W. 75

FRIEDMAN et al. v. GRIFFITH et al.

No. 12483.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by David Friedman and Meyer Friedman, doing business as Friedman Bros., against David J. Griffith and J. W. McMurry, doing business as Griffith & McMurry. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

John E. Wilson and D. D. Dutton, both of Kansas City, for appellants. H. S. Julian, M. L. Friedman, I. J. Ringolsky, and Ringolsky & Friedman, all of Kansas City, for respondents.

TRIMBLE, J.

Griffith & McMurry had the contract for grading the roadbed of the St. Joseph branch of the interurban railroad known as the Kansas City, Clay County & St. Joseph Railway. They sublet a portion of the work to one Frank Burke. The latter, in doing the work, maintained a camp along the right of way where his men and teams were kept and fed. In order to get supplies and groceries therefor, he applied to plaintiffs, who, before selling them, inquired of defendants concerning Burke, and were assured by them that they considered him the best man on the road and drew the largest estimates for his work, and that he was "absolutely all right." Plaintiffs thereupon began supplying Burke with groceries until he had incurred an indebtedness of $541.87 therefor, and not having the money to pay for same, he, on June 24, 1912, gave an order on Griffith & McMurry to pay plaintiffs that sum out of any money due him, which order reads as follows:

"Griffith & McMurry, Kansas City, Mo. — Gentlemen: Please pay Friedman Bros. $541.87 out of my final estimate and charge the same to me. This is for groceries furnished.

                                   "Signature: 
                

"The amount of five hundred forty-one & 87/100 dollars — $541.87/100 — is due Mess. Friedman Bros. from me and I am willing that it be charged to me by Messrs. Griffith and McMurry and paid out of any money due me.

                                    "Frank Burke."
                

Plaintiffs presented the order to defendants who took it and filed it away saying that Burke had no money due him at that time, but that he would have when the final estimate was made, and that plaintiffs need not worry about their money. Thereafter, at different times throughout that year, plaintiffs went to defendants to get the money due upon the order, and each time were told that Burke had not yet got his estimate. Finally, in December, plaintiffs were told that Burke had no money left or coming to him, and the order was handed back to them.

Defendants admit that the order was presented to them; that they had no objection to the order being given on them; that their intention was to hold plaintiffs' money for them, if Burke had any coming to him, and, in that event, to apply it on said order. They denied keeping the order, and say they refused to "accept" it. The cross-examination, however, discloses that by this they meant they refused to write "Accepted" on the bill and to sign it. This cross-examination also shows that defendants told plaintiffs that if at any time they (defendants) had any money due Mr. Burke they would pay plaintiffs their debt.

Upon defendants' refusal to pay the order, this action was brought in February, 1913. Burke was claiming that defendants owed him a large amount of money on his contract, and sued defendants in Chicago for about $9,800. Since the question whether Griffith & McMurry owed Burke any money was an issue in both suits, and since it was an expensive issue to litigate for both of the parties hereto and doubly so to defendants if they had to do it twice, and as plaintiffs recognized that it would be much easier for Burke to establish a claim for work than for plaintiffs to do so, it was readily agreed between counsel representing plaintiffs and counsel for defendants that the case at bar should stand continued to await the outcome of the suit in Chicago, and, if Burke won his suit, that would settle the question of whether defendants were liable to pay plaintiffs under the order involved herein. If Burke was entitled to any money, the defendants would as soon pay it to plaintiffs as to any one else, and they would deduct therefrom the amount due plaintiffs and pay it to them. The case at bar was thereupon continued by agreement throughout the various terms of court during the years 1913, 1914, and 1915; plaintiffs' counsel making inquiries from time to time as to the outcome of the Chicago suit, and defendants' counsel in turn making inquiries of the Chicago counsel in charge of that suit. Finally, in the latter part of the year 1915, plaintiffs' counsel learned from defendants' counsel that the Chicago case had been "settled" for $1,000. The plaintiffs' claim not being paid, their case was duly brought to trial, resulting in a verdict and judgment for plaintiffs, to reverse which the defendants have appealed.

The question of plaintiffs' right to recover, by reason of the order and the circumstances connected with it, depended solely upon whether Griffith & McMurry, under their contract with Burke, owed him money at any time after the presentation of said order to them. The admissions in defendants' evidence conceding that the assignment was presented to them, and that they had no objection to the assignment being made, show that they had no defense to the plaintiffs' claim, based upon the ground that the order was a partial assignment of a debt. That defense had been waived. Fourth National Bank v. Noonan, 88 Mo. 372, 377; Turner v. Lord, 92 Mo. 113, 117, 4 S. W. 420; Johnson County v. Bryson, 27 Mo. App. 341, 350; Rice v. Dudley, 34 Mo. App. 383, 392; Gordon v. Jefferson City, 111 Mo. App. 23, 28, 85 S. W. 617. As there was no defense open to them upon the ground that it was a partial assignment, the question of whether they "accepted" said order, or verbally promised to pay the same, was no longer a necessary element of plaintiffs' cause of action. The invalidity of the assignment on account of its partial nature being something that the defendants could and did waive, the order and the presentation thereof to the defendants, regardless of acceptance, had the effect of vesting in plaintiffs the right to have paid to them the amount of said order out of any money defendants owed Burke, and operated as an assignment of that much of Burke's debt to plaintiffs, and bound defendants to pay same to plaintiffs, if Burke had any such debt. Bank of Commerce v. Bogy, 44 Mo. 1, 18, 100 Am. Dec. 247; Kimball v. Donald, 20 Mo. 577, 64 Am. Dec. 209; Walker v. Mauro, 18 Mo. 564; Boyer v. Hamilton, 21 Mo. App. 524; Hydraulic Press Brick Co. v. Saville, 1 Mo. App. 96. For this reason plaintiffs' instruction No. 1 was not erroneous in that it omitted to submit the question of whether defendants verbally agreed to pay said order, nor did it go beyond the scope of the petition, since that was broad enough to entitle plaintiffs to a judgment regardless of an "acceptance" of the order. In fact, the admissions in defendants' evidence, which conceded that the order was presented to them, that they consented to the order and made no objection because the assignment was only partial in character, and that the agreement was they would pay the order if there was anything due Burke, left only one issue to be settled before the question of plaintiffs' right to recover could be decided. That issue was whether, under Burke's contract with defendants, there was any money due him.

On this feature of the case defendants contend that there...