Great Lakes Coal & Coke Co. v. Segall

• Citation: 59 S.W.2d 775,227 Mo.App. 965
• Parties: GREAT LAKES COAL & COKE COMPANY, APPELLANT, v. SAM SEGALL ET AL., RESPONDENTS
• Decision Date: 01 May 1933
• Court: Court of Appeals of Kansas

59 S.W.2d 775

227 Mo.App. 965

GREAT LAKES COAL & COKE COMPANY, APPELLANT, v. SAM SEGALL ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 1, 1933

Appeal from Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

Reversed and remanded.

Landis & Landis for appellant.

William Stone (no brief) for respondents.

OPINION

SHAIN, P. J.

This action was commenced in the Justice Court in Buchanan County Missouri, by plaintiff Great Lakes Coal & Coke Company, an Illinois corporation, filing a petition asking to recover $ 97.60 as balance due from the defendants, Sam Segall and Benjamin Herman, copartners, doing business as Great Western Coal & Junk Company.

Trial in the justice court resulted in a verdict for the defendants, plaintiff appealed to the circuit court and jury trial in the circuit court resulted in a verdict for the defendants.

This cause was presented to this court on appeal with four (4) assignments of error, as follows:

"I. The court erred in admitting in evidence defendant's Exhibit 'D' and in giving defendant's Instruction 1, based on said exhibit.

"II. The court erred in admitting in evidence the records of the justice of the peace in the case of Minter v. Franklin County Coal Company, and also defendant's Exhibits 'B' and 'C.'

"III. The court erred in refusing Instruction A, offered by the plaintiff and in giving Instruction 2 on behalf of defendants.

"IV. The verdict of the jury is contrary to the evidence and the instructions and is clearly the result of passion and prejudice."

The record discloses that defendants in November, 1930, purchased and thereafter received from the Franklin County Mining Company a car of coal at the invoice price of $ 109.31. The plaintiff alleges an assignment of the said account of $ 109.31 against defendants and presents in the evidence an assignment in writing from the Franklin County Mining Company under date of November 28, 1930.

The record does not disclose that any question was raised by the defendants, as to this assignment being other than genuine and as given for and upon the consideration therein expressed. The defendants are shown to have accepted the assignment as genuine by their act of remitting $ 11.71 on said account to the plaintiff on or about February 21, 1931.

The defense to the action is based upon the fact that the defendant was summoned as garnishee in an action in the justice court by George C. Minter against the Franklin County Mining Company wherein Minter sued said company by attachment for debt of $ 82.95. This attachment suit was filed December 16, 1930. The service of garnishee, Great Western Coal & Junk Company, defendants herein, was had on the same day and the time for answer set for the 27th day of December, 1930. On December 27th the defendants filed answer to this garnishment admitting an indebtedness to Franklin County Mining Company in the sum of $ 109.31, as due January 10, 1931. On January 20, 1931, judgment was had against the defendants as garnishee in the sum of $ 82.95. On February 13, 1932, execution is shown as issued on this judgment and on February 18, 1932, execution is shown returned satisfied, garnishee having paid $ 92.60. The evidence discloses that the $ 92.60 represented the debt and costs. On February 21, 1932, $ 11.71 was remitted to plaintiff herein by the defendants.

It is shown that defendants retained and paid an attorney fee in the garnishment proceeding in the sum of $ 5. The contention of defendants is that the $ 11.71, $ 92.60 and $ 5 attorney fee totaling $ 109.31 is payment in full for the car of coal purchased. The evidence discloses that no attorney fee was allowed in the garnishment proceedings.

The plaintiff claims to have notified the defendants by letter dated November 28, 1930, of the assignment of the Franklin County Mining Company account to it. What purports to be this letter of November 28, 1930, is introduced by plaintiff and received in evidence without objection or comment. There is no showing as to when this letter was mailed and defendants deny ever having received such a letter.

Sam Segall, one of the copartners in the Great Western Coal & Junk Company, admits that there was received a communication from the plaintiff between the 10th and 12th of January, 1932, notifying the defendants of the assignment of the account by Franklin County Mining Company to plaintiff. This was nearly a month after service on defendants as garnishees and approximately fifteen days after the defendants had answered in the garnishment proceedings.

The real issue presented is as to whether or not the payments on execution of the $ 92.60 on February 13, 1932, the retention of the $ 5 attorney fee and the remittance by defendants to plaintiff on February 21, 1932, of the $ 11.71 all totaling $ 109.31, constitutes payment of the account and thereby bars the plaintiff from recovery from the defendants in this action.

Much of the evidence consists of documents and letters. Outside of objections made as to defendant's Exhibits D, B, and C and the records of the attachment and garnishment proceedings, there appears to be no exceptions taken to the introduction of the evidence. This being so, the documents and letters presented in the evidence, outside of those mentioned above, must be considered as proof of all of their contents that are germane to the issues involved herein.

The respondent has failed to file a brief for our consideration and we are left to gather from the record the defendants' position respecting the matters presented in the plaintiff's assignment of error.

The defendants' Exhibit D, which purports to be a statement of account for the car of coal, admittedly purchased from the Franklin County Mining Company by defendant, was admitted in evidence over the objection and exception of the plaintiff. The plaintiff is now presenting that the admission was error and further complains that it was error to give defendants' instruction No. 1 as based thereon.

The plaintiff presents that this statement of account was not properly identified. In consideration of the fact that it stands admitted that the coal was purchased from the Franklin County Mining Company and at the price designated we see no error in admitting same that can be based upon the reasons assigned. The plaintiff further presents the same as incompetent on the ground that it presents an unsworn declaration of an assignor made after the assignor has assigned the account to the plaintiff. We conclude that if error for this reason it is harmless for the defendant made no defense prior to interposing instruction No. 1 that in any way controverted the fact that the assignment was made upon the date claimed by plaintiff. The only contention presented in the progress of hearing evidence is that the defendant did not have notice of this assignment until between the 10th and 12th of January, 1932.

This court must of course give to defendants' testimony its most favorable inference. We are compelled therefore, in our review of this case, to infer that defendants had no notice of the assignment prior to January 12, 1931. This court must further conclude, by defendants' admission, that defendants on January 12, 1931, did have notice of a valid assignment of the Franklin County Mining Company to the plaintiff.

This brings us to the conclusion that plaintiff's right to recover for the whole amount sued for, if it has such right, is by reason of the fact that the defendants did admittedly have knowledge of the assignment prior to the date of judgment in the garnishment proceeding and prior to payment of that judgment by defendants.

We, therefore, conclude that there is nothing in defendants' Exhibit "D" that materially affects the plaintiff's cause of action and if error the same is harmless.

As to defendants' instruction No. 1, we conclude that it interjects as issue of fact as to a matter that stands conceded. As before stated, the defendants nowhere base defense on the ground that the assignment was not made as alleged in plaintiff's petition except as shown in instruction No. 1. However, as the plaintiff herein presents in its instructions the issue as to whether or not there was an assignment it is in no position to complain as to defendants submitting that issue.

The plaintiff's second assignment of error is as to the admission in evidence of defendants' Exhibits "B" and "C," together with the justice of peace docket. Exhibit B is defendants' answer to interrogatory to the effect that defendants owed the Franklin County Mining Company...