Klausmann Brewery Co. v. Schoenlau

• Decision Date: 13 November 1888
• Citation: 32 Mo.App. 357
• Parties: KLAUSMANN BREWERY COMPANY, Respondent, v. THEODORE SCHOENLAU, Appellant.
• Court: Missouri Court of Appeals

32 Mo.App. 357

KLAUSMANN BREWERY COMPANY, Respondent, v. THEODORE SCHOENLAU, Appellant.

Court of Appeals of Missouri, St. Louis.

November 13, 1888

Appeal from the St. Louis City Circuit Court. --HON. DANIEL DILLON Judge.

AFFIRMED.

E T. Farish, for the appellant.

It is evident from the testimony, and from the facts and circumstances under which the agreement of July, 1885, was made, that it was made in view and for the purpose of securing the continuance of the custom of defendant. It is most apparent that because of such agreement plaintiff secured the custom of defendant for a period of nearly two years, and that but for the breach of such agreement by plaintiff, defendant would have still continued to deal with plaintiff. The action of the court was predicated upon the idea that there was no consideration for the contract as originally made, and that the payment of five hundred dollars, though made and tendered by the defendant in full discharge of his liability for the one thousand dollars; and though such money was received and accepted by the agent of plaintiff, with the distinct announcement of the fact that it was paid in full of said one thousand dollars, that the plaintiff could accept and retain said sum and apply it pro tanto on account of what was due, and sue for and recover the balance. On this proposition the defendant contended and still contends that the court was in error. It is undoubted law that the mutual advantage of the contracting parties is a valuable consideration, sufficient to support the contract. And consequently that if A. in consideration that B. would give him his whole trade and continue to deal with him for a reasonable time, that he, A., would release B from the payment of a debt, is, if performed, a valuable consideration sufficient to support such promise. " Hence it is a settled principle, that the adequacy of the consideration is for the parties to consider at the time of making the agreement, not for the court when it is sought to be enforced." Harrison v. Town, 17 Mo. 237; Bainbridge v. Firmstone, 8 A. & E. 743; Sykes v. Chadwick, 18 Wall. 141; Gravely v Barnard, L. R. 18 Eq 518; Lee v. Dodd, 20 Mo.App. 284; Adams v. Helms, 55 Mo. 468.

Rassieur & Schnurmacher, for the respondent.

There was an entire failure of proof in support of the plea of payment. But, supposing the plea to have been accord and satisfaction--there was no evidence upon which to have based a verdict for defendant. Payment in money of a part of an undisputed debt is not a good satisfaction, even if accepted as payment in full. Riley v. Kershan, 52 Mo. 224; Helling v. United Order of Honor, 29 Mo.App. 309; Mullin v. Martin, 23 Mo.App. 539. And will be regarded only as a discharge pro tanto, even though a receipt in full be given. Riley v. Kershan, 52 Mo. 225; Ryan v. Ward, 48 N.Y. 204; Bunge v. Koop, 48 N.Y. 225; Miller v. Coates, 66 N.Y. 609; Harriman v. Harriman, 12 Gray [[[Mass.] 341.

OPINION

ROMBAUER P. J.

We are called upon to review the propriety of the action of the trial court in instructing the jury to find a verdict for plaintiff.

The suit is on an open account showing a balance of five hundred and eight dollars in favor of plaintiff. The correctness of the items constituting the account is admitted, and the sole defense is payment.

The defendant's evidence tends to show that he was a saloon-keeper, who for thirteen years and more had purchased his beer from the plaintiff. In August, 1885, there was a balance of $1,786.50, due the plaintiff from defendant, on account of these purchases; the defendant then paid to plaintiff one hundred dollars on account and the plaintiff gave him a voluntary credit of $686.50, leaving a balance of one thousand dollars due. The plaintiff at the date of said settlement promised the defendant, that thereafter, whenever he would pay any amount of the old account, he should receive double credit for such payments. The parties continued to deal with each other thereafter, and the defendant made payments from time to time on account, which were credited to him on his pass-book. In October, 1886, a new pass-book was given to the defendant beginning with the item, " To balance as per agreement on settlement, $1,159.85," which item includes this balance of one thousand...