Mueller v. Wiebracht

• Decision Date: 31 March 1871
• Citation: 47 Mo. 468
• Parties: AUGUSTUS C. MUELLER et al., Defendants in Error, v. WILLIAM WIEBRACHT, Plaintiff in Error.
• Court: Missouri Supreme Court

47 Mo. 468

AUGUSTUS C. MUELLER et al., Defendants in Error,

v.WILLIAM WIEBRACHT, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1871.

Error to St. Louis Circuit Court.

Slayback & Haeussler, for plaintiff in error.

Where one account is with the debtor as executor and the other is in his own right, the law will apply the payment made, when nothing is said, to the debt due from himself individually, and will not allow the creditor to appropriate it to the other demand. (Chit. Cont., 5th ed, 583; Pars. Cont., § 31, and notes.) Nor can a debtor apply payments, where one is barred by the statute, so as to remove the bar of the statute. (Pars. Cont., 5th ed., 630-2; Lowery v. Gear, 32 Ill. 382; Smith's Merc. Law, 672.) Is not this just what is attempted to be done in this case? The plaintiffs are trying to evade the statute of frauds.

If a debtor pay with one intent and the creditor receive with another, the intent of the debtor shall govern. (Reed v. Boardman, 20 Pick. 446; Am. Law Reg. 1865-6, pp. 194-5, 264.) Can there be a doubt as to Wiebracht's intent? Was there any doubt that the money was paid on account of the debt of Schmale & Co.? In this case plaintiffs have never applied the moneys paid to the old balance of $4,084 due by Schmale, as they say it was agreed should be due, but they have mixed up the account of the firm and the old balance of Schmale, and then applied the payments on their books to the credit of the whole account, new and old, and their own testimony shows that this never was the agreement. (Cole v. Shurtleff, 41 Verm. 311.)

Plaintiffs proved that Schmale & Co. verbally agreed that the firm would pay off the individual debt of Schmale. This verbal promise came directly within the statute of frauds; there was no consideration. (Fagan v. Long, 30 Mo. 222.) Our Supreme Court has held that an incoming partner is not liable for the debts contracted before he enters the partnership. Even an instruction is erroneous saying he was liable if he got the benefit for which the debt was contracted. (Sto. Part. 152, 153.)

Plaintiffs have, as appears by the evidence, the fixed idea that an incoming partner is liable for all his partner's old debts. There was no consideration for such a promise by Wiebracht. The plaintiffs released nothing; they did not release Schmale or any one else. They continued to hold their demand against him, and sold the goods to the new firm on the credit of Schmale, not on that of Wiebracht; there was no novation. (Sto. Part., §§ 156, 157; 2 Pars. Cont., 5th ed., 632; Edgell v. Tucker, 40 Mo. 528; Butterfield v. Hartshorn, 7 N. H. 345; Snyder v. Kirtley, 35 Mo. 423.)

Garesche & Mead, for defendants in error.

I. The application of the payments to the old debt was with defendant's express sanction. But aside from proof, the law is so well settled that the application of payments is at the discretion of the payee, except where paid on a particular account, or the debtor indicates a particular application, that authorities on the subject are unnecessary.

II. The plaintiffs' books were admissible to prove the application of the payments, when the evidence clearly proved that they had been shown to defendant, and that defendant had promised to pay the balance shown by them.

III. The judgment was for the right party. (Fagan v. Long, 30 Mo. 222.)

BLISS, Judge, delivered the opinion of the court.

The plaintiffs sue for balance of an account which arose from sales of flour to the firm of Schmale & Co., of which the defendant was the surviving partner. Before the formation of the partnership Schmale had been trading with the plaintiffs, and when defendant came into the firm was owing them a balance of $4,084. The plaintiffs and their book-keeper testified that Schmale brought defendant to their store, informed them that he had become a partner, and that they wished to continue the trade as before, and that both Schmale and defendant agreed that the payments to be made by them should first apply to extinguish the old debt; but this agreement the defendant denied. It appears that before the death of Schmale the plaintiff made further advances to the amount of $2,220.75, and Schmale & Co. paid before, and soon after the death of Schmale, the sum of $4,793, which extinguished the old account and left due upon the new the sum of $1,511.75, for which the suit was brought. The defendant claims that the payments made by Schmale & Co. should be applied first to the payment of that part of the account which accrued after the firm was created, while the plaintiffs insist...