Ohio Cultivator Co. v. Dunkin
| Decision Date | 13 November 1917 |
| Docket Number | Case Number: 7134 |
| Citation | 1917 OK 539,168 P. 1002,67 Okla. 58 |
| Parties | OHIO CULTIVATOR CO. v. DUNKIN et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Account, Action on--Payment -- Acceptance of Notes--Recovery on Open Account.
The question as to whether or not a note taken for a pre-existing debt satisfied and extinguishes the pre-existing debt depends upon the intention of the parties, and is not a question of law, but one of fact for the jury. Hence it is held that a recovery cannot be had upon an open account where the jury finds that notes had been accepted by the creditor as satisfaction of said account.
2. Principal and Agent -- Authority of Agent--Settlement of Account--Notes.
Where the contract of sale of merchandise provides that the account may be settled "by cash or note," and the creditor sends its representative to settle, and he settles by taking notes, with the distinct agreement that the notes should be in satisfaction of the account, held, that the contract contemplated two methods of settlement, either "by cash or note," and that, when the creditor's representative accepted the notes, as contemplated by the contract, and the creditor in turn accepted the result of his settlement, it cannot be contended that, in taking the notes in satisfaction of the account, the representative acted beyond the scope of his authority.
Error from District Court, Jefferson County; Frank M. Bailey, Judge.
Suit by the Ohio Cultivator Company against J. W. Dunkin and A. L. Walker. Judgment for defendants, and plaintiff brings error. Affirmed.
N.C. Peters and J. G. Clift, for plaintiff in error.
Bridges & Vertrees, for defendants in error.
¶1 In January, 1911, plaintiff in error, plaintiff below, sold to the defendants in error, defendants below, certain farm implements on time. On November 28, 1911, the plaintiff sent a representative to the defendants' place of business at Waurika, to make settlement with the defendants. After determining the amount that was due the plaintiff, the defendants executed and delivered their several notes payable January, February, April, and November, 1913, in settlement of the account. Without the knowledge or consent of defendants, all of the notes were altered so as to make them fall due in 1912 instead of 1913. And when the notes were presented for payment in 1912, the defendants refused to pay same. Later the plaintiff sued the defendants for $ 1,026.65, the amount represented by the notes, declaring in one count of the petition upon the open account, and in another count upon the notes. On motion, the court required the plaintiff to elect upon which count it would stand. And it elected to stand on the open account, and tendered the notes into court for cancellation. The defendants filed a general denial, pleaded that the account sued on had been settled by the notes which were taken by plaintiff as settlement and in liquidation of the account sued upon; also by cross-petition claimed certain damages by reason of the plaintiff's refusal to furnish repairs, extras, and supplies contemplated by the contract; and for damages to the business standing and reputation of the defendants, alleged to have been caused by the conduct of plaintiff. The cause was submitted to a jury on general instructions and a special interrogatory, and the jury returned a general verdict, finding the issues in favor of the defendants, and also awarding them a recovery against the plaintiff in the sum of $ 1,026.65, and answered the special interrogatory in favor of the defendants. The defendants filed a remittitur as to the $ 1,026.65, and judgment was rendered to the effect that the plaintiff take nothing by reason of the action, and that the defendants have judgment against the plaintiff for the costs. And from this judgment the plaintiff appeals.
¶2 1. Plaintiff raises a number of minor questions in its brief, but the one proposition which must determine the rights of the parties under the facts and pleadings in this case is whether or not the plaintiff had a right to sue and recover upon the open account. And under the facts in this case, there is comparatively little conflict of authorities upon this question. Maine, Massachusetts, and Vermont hold that the taking of a...
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