Walther v. Woodson

• Decision Date: 27 November 1916
• Docket Number: No. 12180.,12180.
• Parties: WALTHER et al. v. WOODSON.
• Court: Missouri Court of Appeals

190 S.W. 61

WALTHER et al. v. WOODSON.

No. 12180.

Kansas City Court of Appeals. Missouri.

November 27, 1916.

Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.

"Not to be officially published."

Action by L. M. Walther and another against Arch Woodson, Jr. From a judgment of the circuit court, dismissing plaintiffs' appeal from a judgment for defendant in justice's court, plaintiffs appeal. Affirmed.

Pope & Lohman, of Jefferson City, for appellants. W. C. Irwin and A. T. Dumm, both of Jefferson City, for respondent.

TRIMBLE, J.

On June 21, 1915, plaintiffs commenced this suit before a justice on an account for furniture sold the defendant between the dates of May 13 and August 27, 1913, amounting in all (less a credit of $25 paid in February, 1914) to $82.88. It seems that in July or August, 1914, defendant had become indebted to a number of creditors to such an extent as to become financially embarrassed and unable to pay them. A number of them appealed to defendant's father to assist them in collecting their claims. The defendant was working for his father and receiving a salary of $125 per month. The father, in order to assist defendant and his creditors in adjusting their affairs, agreed to retain out of the son's salary the sum of $50 per month, to be applied on the creditors' demands in the order in which said claims were filed with the father. The creditors, among whom were plaintiffs, agreed to this arrangement and filed their respective claims with the father; plaintiffs' being filed also. As a part of said agreement with the creditors, the father agreed further that, if the remainder of his son's monthly salary was not sufficient to maintain the son's family, the father would assist the family out of his own pocket. The arrangement thus entered into was also agreed to by defendant, and it took away from him all means of paying his creditors except through the $50 monthly payments made by the father out of the son's salary on the demands in the order in which they were filed with the father, all of which plaintiffs well knew. It also appears that the father proceeded to pay the $50 monthly on the demands in their proper order, but that plaintiffs' demand had not been reached by June 15, 1915, the date suit was brought. It seems that this agreement between the defendant and his creditors, including plaintiffs, and the father, was set up in the trial of the case in the justice court. The jury returned a verdict finding the issues for the plaintiffs and assessing their damage at the full amount sued for, "to be paid according to the agreement with the creditors" and defendant's father, and directing the costs to be paid by plaintiffs. The justice rendered judgment for plaintiff in strict accord with the verdict, namely, judgment for plaintiffs in the sum of $82.88 for the debt, "to be paid according to agreement with creditors" and defendant's father, and "with cost of this suit to be paid by plaintiffs."

Thereupon plaintiffs appealed upon the merits, and also from the order taxing costs. In the meantime, and before the case was docketed for a hearing in the circuit court, the claim of plaintiffs was reached in its order by the defendant's father, and was paid in full, with 6 per cent. interest thereon, in strict accord with the agreement. Plaintiffs accepted the full amount of their claim and receipted therefor. Thereafter, at the term when the case appealed from the justice was docketed for trial in the circuit court, defendant filed a motion to dismiss, based upon the...