John Hoffman & Sons Co. v. Parks

• Decision Date: 15 November 1921
• Court: Wisconsin Supreme Court
• Parties: JOHN HOFFMAN & SONS CO. v. PARKS.

175 Wis. 303

184 N.W. 1035

JOHN HOFFMAN & SONS CO.

v.PARKS.

Supreme Court of Wisconsin.

Nov. 15, 1921.

Appeal from Circuit Court, Price County; G. N. Risjord, Judge.

Action by the John Hoffman & Sons Company against W. B. Parks. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action by the plaintiff, as indorsee, against the defendant, as maker, of a promissory note for $1,500 dated February 14, 1907, payable on demand to E. L. Hunt, and given as part of the purchase money for a stock of goods.

The note matured on August 23, 1911, when the plaintiff demanded payment. The action was commenced July 28, 1919. Defendant denied liability by reason of the statute of limitations (section 4222, St. 1919). Plaintiff contended that the statute was tolled by payments within the six years next preceding the bringing of the action.

The note was indorsed to the plaintiff company in payment of Hunt's indebtedness to it. Until August 14, 1911, defendant paid the interest to plaintiff. On August 23, 1911, after demand, defendant paid $200 on the principal. These were the only payments which he made directly to the plaintiff.

In March, 1912, Mr. Riemer, credit man of the company, by agreement was appointed trustee of the grocery business of defendant and his partner; and thereafter, until July, 1918, defendant acted as manager under the direction of the trustee. The business was carried on in a building owned by Hunt, who had a store in the same building, a door connecting the two places of business.

On April 9, 1912, plaintiff sent to Hunt the following letter:

“Milwaukee, April 9, 1912.

F. L. Hunt, Phillips, Wis.--Dear Sir: With reference to the rent due you on the Parks & Waterhouse store: We notice that this will be due and payable on the 12th inst., and will amount to $30.00. We wish to inquire if it will be agreeable to you to have this rent credited on your indebtedness with us. We make this proposition believing it will be the easiest way for you to pay it off. Will you kindly advise us by return mail, and greatly oblige.

Yours very truly,

John Hoffmann & Sons Co.”

Hunt returned the letter with the following indorsement:

“Yes, I intended writing you to do so. Truly yours, F. L. Hunt.”

Thereafter, on November 30, 1912, in the presence of Parks, Hunt indorsed and delivered to plaintiff checks aggregating $135, and this amount was indorsed on the note to the credit of Parks. The checks were written by Parks, payable to Hunt, and signed by Riemer as trustee. They represented payments for the rental of the store.

Further indorsements of rent checks were made as follows: May 21, 1913, $180; December 30, 1913, $210; December 17, 1914, $70; September 30, 1918, $70. The delivery of all of these checks to Riemer as agent of the plaintiff took place in the store of Hunt, generally, if not always, in the presence of Parks.

Riemer testified that all of these payments were made in pursuance of an agreement between Parks, Hunt, and himself, whereby the rent money due Hunt from Parks should be paid by Parks to plaintiff and applied on the note, and that Parks was to reimburse Hunt to the amount of these payments.

Hunt testified that he did not remember that Parks had any part in the agreement as to the application of rents, and that there was no express agreement that Parks should reimburse him; that he (Hunt) knew that the rent checks were being applied on the note, and that he considered that Parks was under a moral obligation to reimburse him; and that he hoped to get the money back; that he made the payments because he knew he was liable as an indorser.

Parks denied the agreement, but testified he considered himself under moral obligation to reimburse Hunt. He further testified that he had considered that this note should be taken care of by the trustee, and that he was free from liability on it.

The court submitted the following question to the jury:

“Did the defendant, Parks, agree with Mr. Riemer that the rent checks or some of them might be applied by the plaintiff as payments on the note in question?”

The answer was “Yes.”

Both parties moved for judgment. Judgment was rendered for the plaintiff in the sum of $1,450.54.

W. K. Parkinson, of Phillips, for appellant.

Barry & Barry, of Phillips, for respondent.

JONES, J. (after stating the facts as above).

The principal exception of the defendant's counsel is that the court erred in submitting the special verdict in the alternative.

Passing that subject for the present and assuming that the error was not fatal, the finding of the jury is based on such evidence that we cannot properly set it aside. Both the defendant and Hunt, the indorser of the note, were undoubtedly liable to the plaintiff. It does not seem inherently unreasonable that there should have been an agreement to apply the payments made by the defendant on this indebtedness. It was conceded by Hunt that this would be the easiest way to pay the indebtedness. If some such arrangement had not been made, it would have been natural for the plaintiff to insist upon payment of the note in a manner which might have been more burdensome to both Parks and Hunt. The testimony makes it clear that Hunt expected the rent checks to be applied as they were, and throughout the whole period the plaintiff made the application relying on the supposed agreement.

To this agreement Riemer testified very positively....