Jones v. St. Joseph Gazette Co.

• Decision Date: 06 July 1926
• Docket Number: No. 15646.,15646.
• Citation: 285 S.W. 771
• Parties: JONES v. ST. JOSEPH GAZETTE CO.
• Court: Missouri Court of Appeals

285 S.W. 771

JONES v. ST. JOSEPH GAZETTE CO.

No. 15646.

Kansas City Court of Appeals. Missouri.

July 6, 1926.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be officially published."

Action by E. T. Jones against the St. Joseph Gazette Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Horace Merritt and G. L. Zwick, both of St. Joseph, for appellant.

Lindsay & King, of St. Joseph, for respondent.

BLAND, J.

This suit was brought in a justice court on the following statement

"E. T. Jones, Plaintiff, v. St. Joseph Gazette Company, a corporation, Defendant. Balance due on account, $19.00. Homer C. King, attorney for plaintiff."

Defendant lost in the justice court and appealed the case to the circuit court, where there was a verdict and judgment in the sum of $19 in favor of plaintiff. Defendant has appealed.

Plaintiff's evidence tended to show that one Ferguson in November, 1923, was employed by the defendant to haul newspapers for it from St. Joseph, Mo., to Atchison, Kan., and there distribute them. It was agreed that Ferguson should be paid the sum of $15 for the use of the truck and his time, and $2 each for two men to be furnished by him. Defendant paid the $19 for this trip. In the latter part of November or the first of December, 1923, Ferguson, who at that time was employed by the plaintiff Jones in driving the latter's truck, made another trip to Atchison for the defendant and furnished two men as before. Ferguson attempted to collect the $19 due from this trip from defendant, but one of the agents of the defendant told him that defendant "was low on funds at that time." The next week thereafter Ferguson made another trip to Atchison, driving Jones', truck. At that time defendant's agent told Ferguson that if he would make this trip he would be paid the $19 that was owing to him. Following the third trip defendant gave Ferguson a check made out to him in the sum of $15.

Defendant's evidence tended to show that this check was given in compromise and in full settlement of all demands and that the check had written on it "in full to date." Defendant's evidence further tended to show that Ferguson on his second trip permitted a great number of papers to be lost on the way to Atchison, and that it told him that he owed it more than it owed him on account of this loss; that Ferguson was claiming that the amount agreed upon for making the two trips was due and that defendant settled the matter by paying the sum of $15 as aforesaid. Ferguson testified that he lost no papers, and that when he received the check nothing was said about compromise and the words "in full to date" were not upon it; in other words, that he received the check merely as payment on account. Defendant's testimony tended to show that it did not know Jones in the transaction while Ferguson testified that he informed defendant's agent that he was working for Jones in making the last two trips.

It is insisted that defendant's demurrer should have been given because the check was tendered on condition that it was in full payment and the cashing of the check constituted an accord and satisfaction. There might be something in this if the undisputed evidence showed that it had the notation on it that was testified to by defendant's witness, but there is a dispute as to this question. Defendant's as instructions A and R were properly refused because they directed a verdict, ignoring plai...