McColgan v. Noble
| Decision Date | 24 June 1930 |
| Docket Number | No. 21200.,21200. |
| Parties | McCOLGAN et al. v. NOBLE. |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.
"Not to be officially published."
Action by J. W. McColgan and others, copartners doing business under the firm name of Gray Ridge Stave & Lumber Company, against W. K. Noble. From a judgment for defendant, plaintiffs appeal.
Reversed and remanded.
M. G. Gresham, of Sikeston, and Stephen Barton, of Benton, for appellants.
Sharp & Baynes, of New Madrid, for respondent.
This is an action on an account for barrel staves sold and delivered by plaintiffs to defendant. Plaintiffs owned and operated a stave mill at Gray Ridge, Stoddard county, Mo. Defendant was operating a stave mill at New Madrid in New Madrid county, Missouri. He was a resident of Indiana, and appears to have had an office at Ft. Wayne, in that state. The staves sold to defendant, as set forth in the account sued on, were shipped in carload lots to various points, on the orders of the defendant. The shipments covered dates from September 27, 1926, to January 26, 1927. The debits of the account aggregate $5,078.61. The credits, running from October 11, 1926, to January 14, 1927, aggregate $3,877.44, leaving a balance due plaintiffs, as shown by the account, of $1,201.17, for which the plaintiffs sue.
A dispute arose between the plaintiffs and defendant relative to the grade of one carload of the staves, defendant claiming a deduction of $618.52 on account of the staves being below grade. On March 22, 1927, defendant mailed plaintiffs a statement of the account, in which he took credit with the deduction of $618.52 claimed by him, leaving a balance due plaintiffs of $521.48, for which he inclosed a check, on the face of which was written the words, "in full of account to date." Plaintiffs retained the check, but informed the defendant that they would not accept it in full of the account, and that they would insist upon the payment of the whole balance claimed by them to be due on the account. Plaintiffs never cashed the check.
After some further discussion between the parties, and a failure to arrive at an adjustment, this suit was brought. Defendant pleaded accord and satisfaction.
The action was originally brought in the circuit court of New Madrid county, and was transferred to Pemiscot county, and thence to the Cape Girardeau court of common pleas, on changes of venue.
The case was tried in the common pleas court, with a jury. At the close of plaintiffs' case the court gave for the defendant an instruction in the nature of a demurrer to the evidence. A verdict was returned and judgment entered thereon in favor of defendant accordingly.
The action of the court in giving the instruction in the nature of a demurrer to the evidence is assigned as error here. Defendant justifies the instruction on the ground that plaintiffs retained the check they received from the defendant, and failed to surrender it in court, or place it beyond their control. After the change of venue was taken to the circuit court of Pemiscot county, and while the cause was pending there, plaintiffs filed the check with the clerk of that court, and they produced it in the common pleas court, and introduced it in evidence, at the trial of the cause. It appears that the check, when it was introduced in evidence at the trial, was attached to the transcript and other papers filed in the case, and bore the file mark of the clerk of the Pemiscot county circuit court.
M. G. Gresham, attorney for the plaintiffs, testified that, when the case first came up for trial in the circuit court of New Madrid county, and a continuance became necessary, he asked the defendant's attorneys if they would not permit plaintiffs to cash the check and litigate the difference, but that they refused to do it. Plaintiffs then offered to show by this witness that when the case came up later and was called for trial in the circuit court...
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