Southern Coal Co. v. Barnett

• Decision Date: 05 January 1926
• Docket Number: No. 19212.,19212.
• Citation: 279 S.W. 192
• Parties: SOUTHERN COAL CO. v. BARNETT et al.
• Court: Missouri Court of Appeals

279 S.W. 192

SOUTHERN COAL CO. v. BARNETT et al.

No. 19212.

St. Louis Court of Appeals. Missouri.

January 5, 1926.

Appeal from St. Louis Circuit Court; H. Killoren, Judge.

"Not to be Officially published.'

Action by the Southern Coal Company against William T. Barnett and another, partners trading as the Barnett Coal & Mining Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Kane, Blackinton & Reid, of St. Louis, for appellants.

Wilson & Trueblood, of St. Louis, for respondent.

SUTTON, C.

This is an action upon an account for coal sold and delivered by plaintiff to defendant. The action was commenced in a justice court. Thence it went on appeal to the circuit court. A trial anew in the circuit court with a jury resulted in a verdict and judgment in favor of plaintiff for $427.47, including interest. Defendant appeals.

There is no dispute as to the correctness of the items of the account sued on. The defense is accord and satisfaction. The original account is for nine carloads of coal shipped by plaintiff to defendant upon the defendant's orders. The shipments were made in April and May, 1922. The first shipment was made on April 18th and the last on May 15th. The aggregate sale price of the shipments amounted to $1,227.96. The defendant paid $500 on the account on June 21st and $342.84 on August 3, 1922, leaving a balance of $385.12, for which this suit is brought.

At the time of the transactions involved here the plaintiff's place of business was in Memphis, Tenn., and that of the defendant was in St. Louis, Mo., and the transactions were chiefly conducted by correspondence.

On March 16, 1922, the defendant mailed to the plaintiff an order for the shipment of five carloads of nut coal at $1.80 per ton. The defendant claimed that this order was given pursuant to a previous parol promise of the plaintiff to ship the coal at the price specified in the order. On account of the failure of the plaintiff to accept this order and ship the coal in accordance therewith, the defendant made a claim against the plaintiff for damages in the sum of $385.12. It seems that the defendant brought its claim for damages to the attention of the plaintiff by letter on June 9th and again on July 12, 1922.

On June 15th, plaintiff wrote defendant, inclosing statement of account for April and May shipments, showing amount due thereon of $1,227.96 and asking that the statement be checked up and placed in line for settlement when due. In this letter the plaintiff referred to the defendant's claim for damages, and concerning it said:

"The file is rather voluminous, and we have not the time at present to go into it, but we would appreciate it if you would send us a cheek applying on this account, and we will go into the matter very thoroughly within a short time and let you hear from us."

On June 21st defendant made the payment of $500 on the account as before stated. The payment was made by check mailed to the plaintiff and was accompanied by the following letter:

"We are enclosing you herewith our check for $500 to apply on our account. The reason for this amount is because our auditor is away on a vacation. The auditor will return here from a vacation on the 29th, and your check will be made out that same day. We trust that you will overlook this; as we have plenty of money on hand in the bank. You may rest assured that the 30th will bring another check to you."

On July 6th plaintiff wrote defendant:

"With regard to our account, please arrange to let us have a check for the balance due, which is something better than $700. You promised in a previous letter that the check would be forthcoming on the 29th day of June, but as yet it has not reached our office."

On July 11th plaintiff wired defendant:

"Must have a check for past due account."

On July 14th plaintiff wrote defendant:

"We respectfully ask that you remit the balance due us on account."

On July 18th defendant wrote plaintiff:

"Check for amount we owe you will go forward on the 20th in the regular way."

On July 22d plaintiff wrote defendant:

"We wish to call attention to your letter of July 18th, at which time you stated check would come forward on the 20th for the amount due us. The check did not show up to-day; therefore we are calling your attention to the matter and hope you will arrange to remit on receipt of this letter."

On August 3d the defendant made the payment of $342.84 on the account as heretofore stated. The payment was made by check, sent through the mail, and was accompanied by the following letter:

"Inclosed herewith our check for $342.84, which covers our account with your company in full to date. Please credit our account accordingly and oblige."

The plaintiff accepted and cashed this check, and on August 9th wrote defendant as follows:

"Your letter of recent date inclosing a check for $342.84 applying on account was duly received. You have been given proper credit, and we thank you for the remittance. There is a balance due on your account of $385.12. We ask that you let us have a check immediately for this balance, and of course we understand that you have withheld $385.12 for claim that you have made against us and which we do not think is just or correct, and which we cannot pay. At present we are unable to entertain your claim, and, if you insist further upon same being entertained by us, it would be necessary for you to support your claim by the original bills of lading covering the specific shipments in question."

On August 21st plaintiff again wrote defendant concerning the account. In this communication plaintiff called attention to the balance due on the account, and added:

"We are justly entitled to this, and we must insist upon you letting your check come forward immediately. Under all the circumstances surrounding your claim for $385.12 will state that it is impossible for us to even consider it. Please give this matter your early attention and let us hear from you immediately because it is going to be necessary to place this with an attorney if you do not give us satisfaction within the next ten days."

On August 22d defendant wrote plaintiff in substance as follows:

"Your letter of August 9th has been received. We do not want any hard feelings or trouble with your company, but we have a bunch of correspondence in this office pertaining to unfilled order on which we were forced to purchase coal and charge your company with the difference. We do not think this is a square...