H. F. Reis Lumber & Material Co. v. Kobermann, 21634.

• Decision Date: 08 December 1931
• Docket Number: No. 21634.,21634.
• Citation: 43 S.W.2d 894
• Court: Missouri Court of Appeals
• Parties: H. F. REIS LUMBER & MATERIAL CO. v. KOBERMANN et al.

43 S.W.2d 894

H. F. REIS LUMBER & MATERIAL CO. v. KOBERMANN et al.

No. 21634.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from St. Louis Circuit Court; Harry E. Sprague, Judge.

"Not to be officially published."

Action by the H. F. Reis Lumber & Material Company against Helen Kobermann and others. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

Vernon L. Turner, of St. Louis, for appellant.

C. J. Krueger and Frank Coffman, both of St. Louis, for respondents.

BENNICK, C.

This is an action brought by plaintiff, H. F. Reis Lumber & Material Co., to recover a general judgment against defendants Helen and Albert Kobermann for the balance of an account for lumber delivered by plaintiff to defendants for use in the erection of certain improvements at 4433-37 Morganford road, in the city of St. Louis, and to have the judgment declared a lien upon the property superior to the lien of certain deeds of trust recorded after the commencement of construction.

The petition alleged the delivery of the materials to defendants between May 14, 1924, and September 4, 1924, upon which later date the account became due and payable; credit was given defendants in the petition for the sum of $1,000 paid by them on the account; and a general judgment was prayed for the balance due in the sum of $558.12.

The original answer of defendants was a general denial; but during the course of the trial, leave of court was given them to file an amended answer, affirmatively setting up the defense of payment. The reply of plaintiff admitted the payment pleaded in the answer, but alleged that it was applied upon other accounts of the defendants, with their full knowledge and consent.

Upon a trial to a jury, a verdict, signed by nine jurors, was returned in favor of the defendants. Judgment was rendered accordingly, and, following the overruling of its motion for a new trial, plaintiff has duly appealed.

Counsel for defendants admitted that the two Kobermanns owned the property at the time the improvements were made; that the lumber was delivered by plaintiff upon the premises, and went into the buildings erected thereon; and that it was reasonably worth the price charged, which was the sum of $1,558.12. The sum of $1,000 was concededly paid by the Kobermanns on account on May 31, 1924; and the sole issue for the determination of the jury was whether the balance of $558.12 had also been paid.

Upon this issue, the evidence showed without dispute that on August 6, 1924, defendant Albert Kobermann gave plaintiff a check for $700, which, of course, was more than enough to have paid the account in full, if it was applied against the account involved in this action. It appears that at the time in question Kobermann was engaged in rather extensive building operations in the city of St. Louis; that plaintiff was furnishing him lumber, not only for the Morganford road job, but for a considerable number of other jobs as well; that his total accounts ran into the neighborhood of $50,000; and that from time to time, as the jobs would get under way, payments would be made by Kobermann on account, usually in round figures. Defendants' evidence was that payments would frequently be requested by plaintiff upon the pretext that it was short of money; and that on certain occasions the materials which had been ordered from plaintiff would be paid for by Kobermann before delivery had been made in full.

The controversy in this case arises from the fact that the canceled check in question, as it appeared when offered at the trial, bore across its face the notation, "On account of lumber at 4433-37 Morganford Rd." Kobermann's testimony, in which he was corroborated by plaintiff's own bookkeeper, was that it was his custom to note upon the check the job to which the payment was to be credited; that he made the above notation upon the particular check at the time he drew it; that it was his intention for payment to be applied to the Morganford road account; and that at that time he was not indebted to plaintiff for the materials for any other job, though he later admitted on cross-examination that he did not know whether any other accounts were open then or not. His further testimony was that plaintiff had asked for an advancement of $1,000; that he did not know the exact sum that was due for the Morganford road materials, and suggested that an advancement of $500 would be sufficient; and that he and plaintiff's collector finally compromised upon the amount of $700.

Admitting the receipt of the check, plaintiff's evidence was that the notation was not upon it when it was received from Kobermann; that, if there had been such a notation upon the check, he would have been given credit on his account for the Morganford road job; that when the check was received, it was at first entered on plaintiff's books to Kobermann's general credit; and that three or four days later it was applied upon certain open accounts of Kobermann, other than the Morganford road account, according to plaintiff's own fancy.

There was also evidence for plaintiff that on September 1, 1924, approximately one month after the check for $700 had been given by Kobermann, plaintiff rendered him a bill for his outstanding indebtedness, which included the item sued on herein; that the bill was delivered to Kobermann personally by the salesman for plaintiff who had had charge of the account from its inception; and that when demand was made upon him for payment, Kobermann promised to take care of the bill, and made no claim that the item covering the balance due on the Morganford road account had already been paid. It was shown further that in December of the same year, when Kobermann was apprised by one of...