Seeman v. Noble

• Decision Date: 07 April 1927
• Docket Number: No. 4186.,4186.
• Citation: 294 S.W. 438
• Parties: SEEMAN v. NOBLE.
• Court: Missouri Court of Appeals

294 S.W. 438

SEEMAN v. NOBLE.

No. 4186.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Rehearing Denied May 16, 1927.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Harry Seeman, doing business under the name of Seeman's Sheet Metal Works, against W. K. Noble, doing business under the name of the New Madrid Stave Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Shelly L Stiles, of Caruthersville, for appellant.

Sharp & Baynes, of New Madrid, for respondent.

BAILEY, J.

This is a suit for labor and material furnished and other expenses incurred upon a certain contract for piping, for which plaintiff claims the sum of $577.45. Defendant pleads payment by check duly accepted by plaintiff in full settlement. At the conclusion of plaintiff's evidence, the trial court directed a verdict and judgment for defendant. From this judgment plaintiff has appealed.

It is plaintiff's contention that the peremptory instruction directing the jury to find for defendant should not have been given. Plaintiff, after testifying as to the labor performed, material furnished, and other expenses incurred in connection with the contract for furnishing the piping, etc., at defendant's stave plant, stated that when the job was completed he rendered defendant an itemized statement of the amount due in the sum of $565.15; that he then had a telephone conversation with defendant, in which defendant objected to this bill; that defendant thereafter deducted from the bill the sum of $108 and mailed plaintiff a check for $457.15, marked "Payment in full for the job," which check was accompanied by a letter written by defendant and directed to plaintiff, the contents of which were not revealed. The check was dated October 17, 1925, payable to the Seeman Sheet Metal Works, under which name plaintiff did business. No reply was made by plaintiff to the letter above referred to, and he retained the check without cashing it. The check was still in plaintiff's possession on the day of trial, June 10, 1926. About the middle of December, 1925, plaintiff testified that he turned the matter over to his attorney, who, thereupon, wrote defendant a letter in regard to the matter. Until that time neither plaintiff nor any one for him advised defendant that plaintiff would not accept the check in payment of the account.

At the trial, and after defendant's attorney had made his opening argument on the demurrer to the evidence, plaintiff's attorney made the following offer:

"At this time plaintiff wants to offer the check in question to defendant."

Objection was made, but no ruling. The attorney then stated:

"I am just putting that in the record, I am not going to give it to you, I can tell you that right now—but we are making tender of this check to the defendant at this time."

Nothing further was said, and no ruling made as to the offer. So far as appears, the check is still in plaintiff's possession.

It is quite clear that the account involved in this case may be considered as unliquidated. There...