Jacoby v. O'Hearn

• Decision Date: 10 December 1888
• Citation: 32 Mo.App. 566
• Parties: ELIZABETH JACOBY, Respondent, v. J. E. O'HEARN, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 566

ELIZABETH JACOBY, Respondent, v. J. E. O'HEARN, Appellant.

Court of Appeals of Missouri, Kansas City.

December 10, 1888

Appeal from Saline Circuit Court. --HON. RICHARD FIELD, Judge.

AFFIRMED.

The case is stated in the opinion.

Davis & Wingfield, for the appellant.

(1) The court erred in giving plaintiff's instruction number one. (a ) Because there was no evidence to sustain it. ( b ) Because it entirely ignored the evidence of Henry Jacoby, plaintiff's witness, which was to the effect that plaintiff could only get her pay for board upon orders signed by Igo. (2) The court erred in refusing defendant's first instruction, because there was no evidence in the case to sustain plaintiff's claim, or tending to prove said claim.

Boyd & Sebree, for the respondent.

(1) In this case there was a complete novation. The boarders owed the respondent; they agreed with her that the board-bills should be paid her by O'Hearn, the appellant, with whom they would leave sufficient of their wages, which he would owe them, to pay their board-bills; the appellant O'Hearn owed the men their wages, more than the amount of their board-bills. The men left with him the amount of their board-bills with respondent, O'Hearn retaining the same out of their wages which he owed them. He thereby, if not expressly, impliedly agreed with the men to apply this money of theirs retained by him on their board-bills, and plaintiff has the right to recover the same from him. Sterling v Ryan, 37 N.W. 572; Impl. Co. v. Jackson, 66 Wis. 42; Schuster v. Railroad, 60 Mo. 290; Bull v. Brockaway, 48 Mich. 523; Gibson v. Railroad, 7 Mo.App. 586; S. C., 76 Mo. 549; Utley v. Tolfree, 77 Mo. 307; Rogers v. Gosnell, 58 Mo. 589. (2) Even if there were no evidence in the case that defendant owed the men working under Igo, the custom of chief contractors reserving the right to pay the laborers their wages, so as to prevent liens being filed against the railroads, is so universal and unvarying that the court would take judicial notice of it. But in this case it is not necessary to invoke that rule, as all the evidence shows that O'Hearn was responsible to the men for their wages; that he was paymaster, and that he retained the men's money under an understanding with them that he would pay their board-bills. (3) The fact that the men told young Jacoby to get orders from Igo on appellant can make no difference in this case. The agreement was that they would leave money with O'Hearn to pay plaintiff her board-bills; they did leave the money with him. He knew how much the board-bills were and agreed to pay the money on the board-bills. The fact that plaintiff was not able to get orders from Igo, whether because he had left the country, or any other reason, does not change the fact that O'Hearn held the money under an agreement with the men to pay their board-bills with it. He could not discharge his obligation to plaintiff, either by paying or crediting the money to the wrong person. Plaintiff is the only one that he had the right to pay the money to, and if he has credited Igo with the amount that cannot affect plaintiff's rights. Furthermore, the evidence shows that O'Hearn has never paid the money to anybody. He has simply credited the amount on Igo's account, and this being a credit to which Igo is not entitled, he could not claim it. O'Hearn still holds the money, and he cannot pay Igo's debt to him with money which belongs to plaintiff.

RAMSAY J.

This suit was begun in one of the justice's courts of Saline county upon a statement of the cause of action, as follows " The plaintiff states that in the month of November, 1887, she was keeping a boarding-house, and that the following named persons boarded with her and the amount of their board-bills with her in said month were sums set opposite their respective names, to-wit: Charles Williams, $3.50; F. Murphy, $4.35; J. Beck, $9.25; J. W. Huff, $3.35; M. W. Blue, $6.00; F. Harrison, $9.65; H. Demmick, $11.80. That each of said persons agreed with plaintiff at the time he began boarding with her that their several board-bills should be paid by the defendant, they being at the time employes of defendant, and that said board-bills should be paid plaintiff on the twentieth day of December, 1887, when their wages for that month, November, became due; that afterwards the defendant assented to said agreement, and agreed to pay plaintiff said several amounts, and retain the said amounts from the respective amounts due each of said employes, and thereby the defendant became discharged from paying each of the said employes his wages to the amount of each of their said board-bills, and became bound to pay the same to plaintiff; that the said amount became due plaintiff from the defendant on the twentieth day of December, 1887, and although demanded of defendant on that day he refused to pay the same, and the same remains unpaid. Wherefore plaintiff says that by reason of the premises, the defendant owes her forty-seven dollars and ninety cents, and for which she asks judgment. And plaintiff for another count and statement of her cause of action, states that on or about the twentieth day of December, 1887, the following named persons were indebted to her for board, furnished them in the month of November, 1887, in the amounts set opposite their respective names, to-wit: Charles Williams, $3.50; F. Murphy, $4,35; J. Beck, $9.25; J. W. Huff, $3.35; M. W. Blue, $6.00; F. Harrison, $9.65; H. Demmick, $11.80, and had been so indebted since December 1, 1887;...