Quint v. Loth-Hoffman Clothing Company
| Decision Date | 11 July 1921 |
| Citation | 233 S.W. 92,207 Mo.App. 391 |
| Parties | LEO QUINT, Respondent, v. LOTH-HOFFMAN CLOTHING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sale & Frey and David Goldsmith for appellant.
(1) That instruction was erroneous, because the present action is based upon an account stated and the evidence fails to establish the stated account pleaded. Cape Girardeau etc. R. R. Co. v. Kimmel, 58 Mo. 83; Missouri Pacific Ry. Co. v. Commission Co., 71 Mo.App. 303; Fisse v. Blanke, 127 Mo.App. 431; Commercial etc. Co. v. Kroell, 85 Mo.App. 340; Columbia Brewing Company v. Berney, 90 Mo.App. 96; Davis & Co. v Boswell & Strawn, 77 Mo.App. 294. (2) The credit of the sum of $ 215.35 on plaintiff's account with the defendant constituted a payment pro tanto on that account. 30 Cyc. of Law and Practice, pp. 1187-1190; Royce v. Barrager, 116 Iowa 673; Hare v. Bailey, 73 Minn. 416; Grubbs v. Nixon, 123 S.W. 785. (3) The delivery by the defendant to the plaintiff of two checks mentioned in the evidence constituted a payment of the defendant's account for commissions upon the condition that the check would be honored when duly presented. N. Y. Utility Company v. Steam Laundry Co., 175 N.Y.S. 60;- Burnstein v. Sullivan, 134 App.Div. N. Y. 625; Born v. Nat Bank, 123 Ind. 81; Houghton v. City of Boston, 159 Mass. 141, 142; Hodgson v. Barrett, 33 Ohio St. 63, syll. 3; Natl Park Bank v. Levy Brothers, 17 R. I. 749; 22 American & English Enc. of Law (2 Ed.), pp. 569, 570; Bailey v. Pardridge, 134 Ill. 188, syll. 5; McFadden v. Follrath, 130 N.W. 543; Holmes v. Briggs, 131 Pa. 233; Wedmore v. McInnis, 69 Pa. Superior Court, 220; R. H. Herron Co. v. Mawby, 89 P. 872; Stevens v. Park, 73 Ill. 387. (b) Accordingly, if the creditor who receives a check fails to present it in due time, any resultant loss will fall on him. Selby v. McCullough, 26 Mo.App. 70; Bonaparte v. Thayer, 95 Md. 548; Duffy v. O'Donoven, 46 N.Y. 223; Moore v. Twin City, etc., Co., 92 Wash. 613; Brown v. Schwartz, 202 Ill. 509; Watt v. Gans, 114 Ala. 264. (c) A tender of a check, if refused on some ground other than that it is a check, constitutes a tender of payment. 28 American and English Enc. of Law (2 Ed.), page 27; Raymond Kepler & Co. v. McKinney Bros. & Co., 58 Mo.App. 303; Beckham v. Puckett, 88 Mo.App. 635. If the tender of a check constitutes a tender of payment, the acceptance of the check must constitute acceptance of payment--at least, upon the condition hereinbefore noted, there being an implied warranty that the check will be honored when duly presented.
Thomas S. McPheeters for respondent.
(1) A statement showing the items of credit and debit between the parties with the balance struck and agreed between the parties as being correct constitutes an account stated, from which the law implies the promise of payment. All of these elements are found in the statement dated October 31, 1917, handed to the plaintiff by defendant. 1 Corpus Juris 678; Adam Roth Grocery Co. v. Hotel Co., 183 Mo.App. 429. (2) An unexecuted agreement without consideration is nudem pactum. 13 Corpus Juris 312. (3) The acceptance of a check does not constitute payment, unless it is expressly agreed that it should be taken as payment. 30 Cyc 1207; Barton v. Hunter, 59 Mo.App. 610; Block v. Dorman, 51 Mo. 32.
This action upon an account stated resulted in a verdict and judgment for plaintiff for the full amount claimed by reason of a peremptory instruction given by the lower court of its own motion to the effect that the verdict of the jury must be for the plaintiff for the amount sued for. Defendant appeals asserting that the action of the court was not justified under the facts of the case as disclosed by the evidence.
The petition was in two counts, one based on a stated account, and the other on an open account. At the close of plaintiff's case he dismissed his claim upon the open account and stood upon the first count of the petition, which is based upon an account alleged to have been stated on or about October 31, 1917, in the sum of $ 1419.82.
Defendant's answer was a general denial coupled with a special defense to the effect that an account was stated between plaintiff and defendant in April, 1918, and by that stated account is was agreed that defendant was indebted to plaintiff in the sum of $ 1204,47, and it is alleged that defendant had paid said sum in full satisfaction of plaintiff's claim.
The plaintiff was employed by defendant as a traveling salesman under a contract by which he received a commission of eight per cent on all goods sold by him and delivered by the defendant. The plaintiff's brother Harold Quint was also employed by defendant under the same character of contract. In January, 1918, after the plaintiff had returned from the road where he had been selling defendant's goods during the fall season of 1917 and after his brother Harold Quint had left the employ of the defendant and while the plaintiff was in the office of the defendant company, its president Mr. Loth handed him a statement of his account dated October 31, 1917, and which covered plaintiff's commissions earned during the fall of 1917. This account was in the ordinary form showing credits and debits, and it appeared therefrom that there were commissions due the plaintiff amounting to the sum of $ 3308.63 from which the plaintiff had drawn $ 1888.81, leaving a balance due of $ 1419.82. According to plaintiff's testimony Mr. Loth at the same time that he gave him a statement of his account also handed him a statement of his brother's account which showed that his brother was overdrawn to the extent of $ 590, which account plaintiff testifies he sent to his brother who was in the Army, and that no conversation took place at that time between Mr. Loth and the plaintiff with reference to the payment of his brother's account. Mr. Loth testified that on this occasion he handed the plaintiff his statement and also a statement of his brother's account and said to him: "Here is a statement of your account and also Harold's account; the amount that Harold has overdrawn I will deduct from the amount that is owing to you and I will give you a check for the balance." Mr. Loth testified that the plaintiff then said: "I am going away and I don't want any money; leave it until I get back."
It was uncontradicted that the plaintiff thereafter continued to work for tht defendant and made another trip on the road in the spring of 1918 and that defendant mailed to him a check for $ 828.94, which was the amount of the plaintiff's account less the overdraft of his brother, which check was returned to the defendant for the reason that it was insufficient, as the plaintiff claimed that he had nothing to do with his brother's account. Nothing more was done about the matter until plaintiff again returned to the defendant's office in April, 1918, when there was another conversation between the plaintiff and the president of the company. According to plaintiff's version of this conversation Mr. Loth said to him that he had charged the overdraft of his brother Harold to his account and that plaintiff told him he had nothing to do with his brother's account, that he refused to pay the overdraft, and that Mr. Loth then said to him that there were some personal items on Harold's account amounting to $ 215.35 which the defendant company had paid out for Harold on account of clothes, doctor bills, etc, and which had nothing to do with the business of the defendant, and which Mr. Loth said the company should not stand. Plaintiff testified that in reply to that proposition he said: "Well I will tell you, I wont be small about this matter, I will stand those personal items providing you pay six per cent on the money that has been due me since October 31, 1917." Plaintiff testified that Mr. Loth didn't say anything, but that he went into the office and returned with two checks, one for $ 828.94, and being the same check that had been previously sent to plaintiff and returned by him, and the second check for $ 375.53, making a total of $ 1204.47; that defendant also had a statement of account and on which he had entered the item $ 215.35, being the personal items on the account of Harold Quint and which showed a balance due plaintiff of $ 1204.47. Plaintiff testified that these checks were given to him; that after looking at the check and the account he found that it did not include the interest on his total account; that he then went into the office of Mr. Loth and said: "Mr. Loth this check does not include interest;" and he said, "Well it is only a small matter I will think it over and put it on your next statement; and I said, "No I wouldn't care to have it that way; I want it on this statement and settle this now," and he refused to do it; so I laid both the checks on his desk and walked out of the office.
Mr Loth testified with reference to this conversation in April, 1918, that he told the plaintiff that Mr. Hoffman, the uncle of plaintiff and who was connected with the business, had told him that the firm would not lose anything on account of Harold Quint as a salesman; that plaintiff Leo Quint would make good Harold's losses, and that he said to plaintiff that as to the personal items that had been paid for Harold in the way of doctor bills, tailor bills, insurance, etc., that he wouldn't expect the firm to stand for these items, and that plaintiff then said: "What does that amount to?" and that the witness then gave him an itemized account amounting to $ 215.35, and that plaintiff then...
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