Redwine v. Rohlff Lumber and Supply Co.

• Decision Date: 29 May 1939
• Docket Number: 2109
• Citation: 91 P.2d 49,54 Wyo. 253
• Parties: REDWINE v. ROHLFF LUMBER AND SUPPLY CO
• Court: Wyoming Supreme Court

91 P.2d 49

54 Wyo. 253

REDWINE v. ROHLFF LUMBER AND SUPPLY CO

No. 2109

Supreme Court of Wyoming

May 29, 1939

ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by the Rohlff Lumber & Supply Company against L. W. Redwine on an open account for materials furnished, wherein defendant filed a cross-complaint. To review a judgment for plaintiff defendant brings error.

Affirmed.

For the plaintiff in error, the cause was submitted on the brief of Fred W. Layman of Casper, Wyoming.

Plaintiff's action is on a running account for merchandise sold commencing with the month of June, 1933, and described in a statement marked Exhibit "A." From plaintiff's evidence introduced over objections of defendant, it is obvious that the account sued upon does not cover all merchandise purchased from the plaintiff by the defendant although the petition and Exhibit "A" made no reference to the other items of merchandise. The statement indicates that it contains all of the merchandise purchased by defendant. The admission of plaintiff's evidence over defendant's objections showing that all payments made by the defendant except $ 400.00 had been credited on other items of merchandise purchased by defendant, was prejudicial error. A plaintiff is bound by his statement of account and cannot go outside of it, either as to debits or credits. 1 C. J. 653, Sec. 159; Saunders v. Osgood, 46 N.H. 21. The Court erred in denying defendant's motion to strike the evidence of G. H. Reimerth, so far as it related to the application of payments evidenced by Exhibits 1 to 5, inclusive, as being at variance with plaintiff's Exhibit "A." This was prejudicial error. Saunders v. Osgood, supra. The Court at first was not inclined to permit defendant to produce additional evidence of payment, but when it did admit such evidence, it did not constitute an abuse of discretion; 64 C. J. 155, Sec. 177. The plaintiff by leave of court could have amended his petition to include all other accounts and credits. The failure of the plaintiff to do so, produces the appearance of trickery; certainly it placed the defendant at a disadvantage when the Court permitted plaintiff to show application of defendant's Exhibits 1 to 5 on other accounts, with the result that defendant was obliged to show other evidence showing payment. A new trial should be granted for the purpose of effecting full and complete justice between the parties. The order overruling a motion for a new trial was error. Moreover, the evidence of defendant in rebuttal showing further payment totaling $ 1,878.48, showed payment in full of the account and indicates that the judgment is not sustained by the evidence.

For the defendant in error, the cause was submitted on the brief of Wm. D. Cobb, H. B. Durham, and C. M. Crowell of Casper, Wyoming.

The sole error argued in defendant's brief is whether the Court erred in permitting plaintiff's accountant to testify that the checks (defendant's Exhibits 2-5) were applied by plaintiff for materials on job accounts theretofore existing between plaintiff and defendant, other than those upon which plaintiff's cause of action was based. Defendant cites 1 C. J. 653, and Saunders v. Osgood, 46 N.H. 21, but the text is not supported by one of the two cases footnoting the text, Armour and Company v. Bruthenthal and Beckert (Ga.) 72 S.E. 168; Lester v. F. David Inc. (R. I.) 123 A. 293. The case of Smaltz v. Newhof (Mich.) 144 N.W. 853 presents a statement of facts parallel to those of the instant case. See also 48 C. J. 677, Sec. 165; Yolland Co. v. Mulcahy (Calif.) 238 P. 118 and Hendricks v. Leopold (Texas) 18 S.W. 638. Defendant was advised by the specification and particulars of plaintiff's action as to the particular accounts and balances thereof upon which the suit was brought. He admitted he had received the materials sued for, but claimed that he had paid for them. The court proceeded upon the theory that plaintiff was mistaken and that defendant's Exhibits 2-5 were payments upon the account sued upon. The burden was upon defendant to prove payment of the accounts sued on. Defendant received credit for every payment shown before he rested his case. Defendant did not question the application of these payments to other accounts. Defendant can show no damage to himself by reason of the acts of the plaintiff. Was defendant surprised to learn that he owed the plaintiff a balance? He did not so testify. He testified that he knew of other accounts. He did not testify that he had asked that the payments made be applied to the job accounts sued on. In the last analysis, defendant admitted he sued the plaintiff for the accounts sued upon and defendant did not prove that these accounts had been paid as he alleged in his answer. One alleging payment has the burden of proving that such payment was directed to the specific obligation upon which suit was brought. 48 C. J. 685; Light v. Stevens (Calif.) 113 P. 661; Hill v. Green (Ark.) 192 S.W. 209; Church v. Church (Me.) 120 A. 429. Defendant failed to show that any of the payments represented by the checks and receipts were credited to the job accounts sued upon. We say the trial court did not err in permitting plaintiff to show that payments made by defendant were applied on job accounts other than those sued upon. The decision of the trial court is controlling on the issue as to whether the defendant sustained his burden of proving payment, there being no evidence of payment by defendant of the accounts sued on. The trial court did not commit error.

Heard before Riner, Chief Justice; Kimball, Justice; and Harry P. Ilsley, District Judge. KIMBALL, J., and ILSLEY, D. J., concur.

OPINION

RINER, Chief Justice.

This is a proceeding in error brought to review a judgment of the district court of Natrona County. The parties will generally be subsequently herein mentioned as aligned on the trial.

The plaintiff, Rohlff Lumber & Supply Co., sued the defendant, L. W. Redwine, on an open account for materials furnished the latter in his work as a building contractor. By stipulation of the parties an itemized statement of the account aforesaid was furnished to the defendant, said statement being designated Exhibit A and made a part of the plaintiff's petition. This statement disclosed that the account in controversy embraced the balance due on some twelve separate jobs or pieces of work for which materials were claimed to have been furnished by the plaintiff to the defendant. For convenience the materials thus obtained were listed on plaintiff's books under charges to each job where they were delivered and used.

The defendant by his answer in the case admitted the receipt of the materials aforesaid, for which he agreed to pay the price stated to be the sum of $ 1278.37, and that a credit of $ 400.00 allowed thereon, as pleaded in the plaintiff's petition, was a proper one. He denied that there remained any unpaid balance, asserting that the materials had been fully paid for.

The defendant's answer also contained a "cross complaint," averring that plaintiff was indebted to the defendant in the sum of $ 105.00, as a balance due him on an architectural plan and estimate of costs requested by it from him for a building to be constructed for one W. A. Spears, and also in the sum of $ 90.00, this amount claimed to be due him on an alleged oral contract between the plaintiff and defendant concerning some 3000 brick, which it was alleged plaintiff had agreed to furnish defendant at the price of $ 38.00 per thousand, or a total of $ 114.00, but failed to do so, and the defendant was obliged to expend the sum of $ 204.00 in obtaining them. Plaintiff's reply denied the allegations "of new matter in said cross complaint contained."

The cause was tried to the court, with the result that there was a general finding made in favor of the plaintiff on its petition and against the defendant on his "cross petition and answer," with judgment thereon in favor of the plaintiff for the amount claimed in its petition, and that the defendant take nothing by his cross-petition, which was accordingly dismissed.

In support of his plea of payment, the defendant introduced in evidence at the trial certain checks, defendant's Exhibits 1 to 5, inclusive, drawn by the defendant in favor of the plaintiff and cashed by the latter. There was no notation on any of the checks designating the job or account to which they were to be applied by plaintiff, nor was there any testimony in the record that defendant's Exhibits aforesaid were in payment of any part of the account in suit, other than defendant's Exhibit No. 1, a check for $ 400.00, which, as we have seen, had been credited to the defendant by the plaintiff on its statement of account.

The plaintiff, after the defendant had rested his case, then over defendant's objection and exception, introduced the testimony of its auditor, C. H. Reimerth, that the defendant's payments evidenced by the checks, defendant's Exhibits 2 to 5, inclusive, had been credited on certain job accounts also owed by defendant to the plaintiff, other than those sued upon. Defendant made no claim that he had not been indebted to the plaintiff for these other accounts. In rebuttal the defendant also introduced additional checks and receipts, defendant's Exhibits 6 to 16, inclusive, these checks being shown to have been cashed by the plaintiff and the receipts given by plaintiff to the defendant for certain payments to it made by check. As to these payments, also, as thus made by the defendant to the plaintiff there was no evidence whatsoever that they were made as payments on the account in suit. The defendant himself testified that he did not know to what accounts the payments evidenced by any of these checks and...