Vanderline v. Smith

• Citation: 18 Mo.App. 55
• Parties: JOHN VANDERLINE, Defendant in Error, v. THOMAS R. SMITH, Administrator of ALEXANDER S. BROOKS, Deceased, Plaintiff in Error.
• Decision Date: 25 May 1885
• Court: Kansas Court of Appeals

18 Mo.App. 55

JOHN VANDERLINE, Defendant in Error, v. THOMAS R. SMITH, Administrator of ALEXANDER S. BROOKS, Deceased, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

May 25, 1885

ERROR to Buchanan Circuit Court, HON. SILAS WOODSON, J.

Affirmed.

The facts sufficiently appear in the opinion.

VINTON PIKE, for plaintiff in error.

I. It is only where the parties go to trial before the country, as though the issues tendered by answer were joined, that defendant will not be permitted after trial to take advantage of the plaintiff's failure to file a reply. Here the case was submitted on the record, the petition and answer and the stipulation as to a part of the facts. By the declaration of law asked the attention of the court was pointedly called to the condition of the pleadings; the plea of payment not being traversed, stood admitted upon the record.

II. The plaintiff admits that his authorized agent had from the defendant all the money due upon the notes and delivered up the notes as paid; but denies that these facts constitute a payment. Beardsley v. Boyd, 37 Mo. 180. The agreed facts put money enough in Green's hand to pay the notes. This money was a trust fund and is presumed to have continued intact until applied to these notes. Peak v Ellicot, 30 Kansas 156. It is too late now to deny the attorney's authority.

WM. E SHERWOOD, for defendant in error.

I. Green, a lawyer, was entrusted with two notes belonging to Vanderline for collection against Brooks. G. owed B. and they undertook to settle it with V.'s notes, without V.'s consent or knowledge. This was not bind ing on V., who was not a party to it directly or indirectly. 1 Parsons on Cont., p. 219.

II. There is no issue that G. was to use the identical money B. had previously entrusted him with to pay for B. on another indebtedness, but which G misdirected. Such defence does not appear of record. Therefore, Peak v. Ellicot, 30 Kansas 156, is not applicable here.

III. When the record does not show a reply to have been filed, the court will presume one to have been filed. It is too late to object after trial. This is the rule in a jury trial, but an agreed statement of facts is a special verdict and why should there be a different ruling. K. C. Court of Appeals, opinion by Ellison, J.; 17 Kansas 173; 42 Indiana 15.

OPINION

PHILIPS P. J.

In October, 1874, Alex. S. Brooks executed to plaintiff two promissory notes due in sixty and ninety days. This suit is to recover on said notes. The answer, after a general denial, pleads payment. The record does not show that any replication was filed to this new matter, The case was submitted to the court on the following agreed statement of facts:

" 1. That after said notes mentioned in the petition became due, and long before the commencement of this suit, plaintiff put the notes in the hands of George D. Green, a licensed attorney of this state, and practicing at this bar, for collection.

2. That prior to the time said Green presented said notes to defendant for payment, the defendant had given said Green certain sums of money, amounting in the aggregate to a sum equal to the amount of the notes, to be applied by the said Green in payment of an obligation of defendant; that said Green did not so apply said money as directed by defendant; that afterwards defendant paid off said obligation with other money, and prior to the presentation of the said notes for payment; that when said notes were presented defendant and said Green agreed to apply that amount of money to the payment of the notes in this suit, and said Green thereupon gave up said notes to defendant and receipted in full against said notes to defendant; said notes were presented after the payment of the other debt by defendant; and that plaintiff has never heard, until the institution of this suit, that defendant, Brooks, had possession of said notes, or that they had ever been settled with said Green in any manner."

The defendant then asked the court to declare the law to be: " That under the pleadings and facts in the stipulated statement, plaintiff is not entitled to judgment, and the judgment must be for the defendant." The court refused to so declare the law, and rendered judgment in favor of the plaintiff. From this judgment defendant duly prosecutes this writ of error.

Since suing out the writ of error the defendant, Brooks, has died intestate, and the case has been revived in the name of Thomas R. Smith as his administrator.

1. The first contention of defendant is, that the instruction asked by him should have been given, because the plaintiff failed to reply to the plea of payment made in the answer, whereby the same stood admitted. The learned counsel for defendant, recognizing the decisions of the supreme court bearing upon the practice in this respect, ingeniously seeks to evade them by suggesting that it is only where the parties go to trial before the country, as though the issues tendered by the answer were duly joined, that defendant after trial will be held to have waived the necessity of a reply. We do not perceive any solid reason for such distinction. The parties, instead of going before the triers of the facts, waived a jury and submitted the case to the court on an agreed statement. This stands as a special verdict, and the court simply applies the law arising thereon. Munford v. Walker, 15 Mo. 540; White v. Walker, 22 Mo. 433; State v. Adair, 55 Mo. 55; Henri v. Grand Lodge, etc., 59 Mo. 581; Gage v. Gates, 62 Mo. 412. It pre-supposes that the issues have been settled and the evidence passed upon. Barden v. St. L. Mut. L. Ins. Co., 3 Mo.App. 248. Logically, therefore, the case cannot differ in principle from a trial before a jury and a verdict before the defendant raises any question as to the absence of a replication. The proper time to take advantage of the want of a replication is by a motion to non pros. the plaintiff, or upon the trial to have asked that the allegations of the answer be taken as true. It is too late to seek advantage of this omission after trial and verdict. Howell v. Reynolds County, 51 Mo. 156; The St. Jos. F. & M. Ins. Co. v. Harlan, 72 Mo. 203; Young v. Glasscock, 79 Mo. 579, 580.

2. On the merits of this controversy the single question is, does the agreed statement show such a payment of the notes to Green as would discharge the debtor? There is no question as to the correctness of the general proposition that when the creditor places in the hands of an attorney notes for collection, that a payment to the attorney will discharge the debt. The attorney in such instance is the special agent of the creditor. As such agent the party dealing with him must however, take notice of the limitations which the law imposes upon his office. In general, the law is, that the attorney " has no authority to execute any discharge of a debtor, but upon the actual payment of the full amount of the debt, and that in money only." Weeks' Attys., sect. 219. This author (sect. 232, pp. 401, 402) further lays down the rule as follows: " An attorney has authority, by virtue...