Northern Lumber Co. v. Clausen
| Decision Date | 16 March 1926 |
| Docket Number | 37181 |
| Citation | 208 N.W. 72,201 Iowa 701 |
| Parties | NORTHERN LUMBER COMPANY, Appellant, v. CLAUS CLAUSEN et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Emmet District Court.--JAMES DELAND, Judge.
ACTION to foreclose a mechanic's lien. On trial, the district court refused the prayer of plaintiff's petition, and dismissed the same. Plaintiff appeals.
Affirmed.
Morse & Lee, for appellant.
A. A Herrick, for appellees.
ALBERT J. DE GRAFF, C. J., and EVANS and MORLING, JJ., concur.
Appellant is a corporation, with its principal place of business at Estherville, Iowa, engaging in the sale of lumber and building materials. It has a local yard at Gruver, Iowa, a small town seven miles distant from Estherville. In the spring of 1923, appellee Clausen bought lumber and building material from appellant under contract, the bill for which amounted to approximately $ 3,125. Various payments were made on the account, and on July 24, 1923, appellee executed and delivered to appellant his check for $ 600, drawn on the Estherville State Bank of Estherville, Iowa. This check was delivered to one Anderson, the agent of appellant at Gruver, who, on the same day, transmitted it to the general office at Estherville. This check was not then presented to the Estherville State Bank for payment, but, on the same day, was forwarded by appellant to the First National Bank of Minneapolis. It reached the Minneapolis Bank on July 25th, on which date the Minneapolis bank mailed it to the Estherville State Bank. The record is silent as to the time said check reached the Estherville State Bank. It is stipulated that the Estherville State Bank closed its doors on July 28th, and was taken over at that time by the state banking department. The $ 600 check was protested, and returned by the state bank examiner to the First National Bank of Minneapolis. It is also stipulated that, at the time said check was drawn, and at all times thereafter, Clausen had on deposit in the Estherville State Bank a sum much in excess of the amount called for by said check. The Minneapolis bank returned the check to the appellant at Estherville.
At the time the $ 600 check was delivered, appellant credited Clausen's account with that amount; but said check was not charged back to Clausen when it was protested. On August 1, 1923, Clausen gave appellant a check for $ 500, and on August 6th following, he gave another check for $ 500. Appellant disposed of these two checks by deducting $ 600 therefrom, to take up the old check, and crediting Clausen's account with the remaining $ 400. It is out of this transaction that the differences between these parties arise. The balance of the account has been paid in full.
The first question raised in the case necessitates a reference to the pleadings. Appellant filed a mechanic's lien, and in this action seeks to foreclose the same. It alleges a balance due of $ 586.35. The appellee answers, denying the indebtedness, and alleges that he delivered to the appellant to apply on this account, two checks for $ 500 each, and that for said checks he received credit on his account for only $ 400. He says that, therefore, his account is paid in full, and asks that appellant's petition be dismissed. No reply was filed by appellant to the answer of appellee. The claim of appellant is that it had an oral understanding with appellee that these two checks, amounting to $ 1,000, were to be applied exactly as it did apply them, to wit, $ 600 to take up the protested check, and $ 400 on account. It further contends that, even if there were no such oral agreement, it had the right, under the law, to make application as it saw fit, so long as it received no direction whatever from the debtor as to the application to be made of the payments. Both sides argued the question of waiver and estoppel and confession and avoidance, and the question of whether or not the affirmative allegations of the appellee's answer should have had a reply in the nature of a confession and avoidance, or a plea of waiver and estoppel, on behalf of the appellant, before it would be entitled to make either of the above claims. We do not deem this question of very material importance in the determination of this case. Boiled down, appellant's claim is that appellee owed the sum of approximately $ 600. The appellee says that he paid this amount in the check for $ 600 above referred to. The burden of proof is on the appellant, in this instance, to prove its claim unpaid, and it is entitled to meet any evidence of appellee's proving payment by any evidence...
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