Ingman v. Hewitt

• Decision Date: 17 November 1938
• Docket Number: 7758.
• Parties: INGMAN v. HEWITT.
• Court: Montana Supreme Court

86 P.2d 653

107 Mont. 267

INGMAN v. HEWITT.

No. 7758.

Supreme Court of Montana

November 17, 1938

Rehearing Denied Jan. 25, 1939.

Appeal from First Judicial District Court, Lewis and Clark County Geo. W. Padbury, Jr., Judge.

Action by Herman Ingman against C. L. Hewitt for balance due for goods sold to defendant. Judgment for plaintiff, and defendant appeals.

Judgment reversed and cause remanded for new trial.

C. E Pew, of Helena, for appellant.

Weir Clift & Bennett and Newell Gough, Jr., all of Helena, for respondent.

ANGSTMAN Justice.

Plaintiff brought this action to recover the sum of $437.65, with interest from August 11, 1931, as the balance due for goods, wares and merchandise sold by him to defendant. By answer defendant admits that he made the purchase of the goods, wares and merchandise, but alleges that they constitute the first items of an account which was taken over by the Ohio-Keating Gold Mining Company with plaintiff's knowledge, and that these items were carried in the account between plaintiff and the Ohio-Keating Gold Mining Company and were paid by general credits paid by the corporation to plaintiff.

The reply put in issue the affirmative allegations of the answer.

The evidence, briefly summarized, shows that plaintiff conducts a merchandising business at Marysville; that between February 26 and August 11, 1931, he sold goods consisting of dynamite, caps and fuse to defendant for mining operations in the sum of $875.10, on which defendant paid $146.20 on March 12, 1931, $83.75 on May 9, $83.75 on June 6, and $123.75 on August 1, leaving a balance due in the sum of $437.65.

In June, 1931, defendant and others organized the Ohio-Keating Gold Mining Company to carry on the mining business theretofore conducted by defendant. Defendant testified that there was an agreement between him and his creditors that the latter would look to the corporation for payment of their claims. Plaintiff, on the other hand, testified that defendant agreed to pay the indebtedness incurred by him personally and to guarantee the payment for goods sold to the corporation, and requested that the account be carried in the name of the corporation. It was shown that a separate action is pending against defendant for the amount of the corporation's indebtedness guaranteed by him. In accordance with the request of defendant, the bills were submitted to the corporation, including the items contracted by defendant personally and for which this action was brought, but plaintiff testified that he looked to defendant personally for the payment of the sum due him as defendant's personal debt, and that he looked to him as guarantor of the debt thereafter incurred by the corporation.

Exhibits were introduced by plaintiff showing the items sued for. Defendant introduced as exhibits register slips constituting a continuation of the account, but against the Ohio-Keating Gold Mining Company, which carried forward the balance due from defendant personally. These exhibits show a credit of $250 by cash as of November 9, 1931, and $250 for a bond of the corporation which plaintiff says he purchased by giving credit on the account. It is these credits which defendant contends discharged the claim here sued upon, if they were applied on the first items of the account as they should have been. Defendant raised the point by motion for a nonsuit, by motion for a directed verdict, and a motion for a new trial.

Defendant relies upon section 7430, Revised Codes, and particularly upon that portion of that section which provides, in substance, that if neither party makes an application of payment, the same shall be applied to the obligation earliest in date of maturity. He also contends that aside from the statute plaintiff himself so applied the credits as to discharge those earliest in maturity.

Defendant's contentions in these respects cannot be sustained. In the first place, there is no evidence tending to show that the corporation ever consented to having payments made by it applied in discharge of the personal debt of defendant. Neither the plaintiff nor defendant could so apply the payments in the absence of consent of the corporation. Furthermore, the jury was warranted in finding that plaintiff had actually applied the credits to the corporate debts and looked to the defendant to pay his own personal debt. In other words, if plaintiff's version of the transactions was correct--and whether so or not was for the jury--then plaintiff actually did make application of the credits otherwise than so as to discharge the items first maturing.

Defendant next contends that the verdict is against law in that it is contrary to an instruction. Defendant offered the following instruction: "If you find from the evidence that the items sued for by the plaintiff were carried forward by the plaintiff into his account with the Ohio-Keating Gold Mining...