Wegmann v. Rothwell

• Decision Date: 07 January 1907
• Parties: WEGMANN et al. v. ROTHWELL et al.
• Court: Missouri Court of Appeals

99 S.W. 59

121 Mo. App. 413

WEGMANN et al. v. ROTHWELL et al.

St. Louis Court of Appeals. Missouri.

January 7, 1907.

1. CONTRACTS — ACTIONS FOR BREACH — EVIDENCE TO SUSTAIN VERDICT.

Evidence in an action for breach of contract considered, and held sufficient to sustain a verdict for plaintiffs.

2. EVIDENCE—PAROL EVIDENCE—CONTRADICTING RECEIPTS.

Receipts in full, signed by a creditor and given his debtor's debtor under an agreement by which all money due from the latter during certain months was to be paid the former, are not conclusive on the former, but may be explained by parol.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by John Wegmann and others against James T. Rothwell and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. J. Donohoe, for appellants. Jones, Jones & Hocker, for respondents.

GOODE, J.

In the summer of 1902, defendants Richard and James Rothwell were partners doing work on the St. Louis Belt & Terminal Railway. They had sublet part of the construction work to B. W. Goiens. Plaintiffs were partners engaged in the grocery, feed, and provision business in the city of St. Louis. Goiens needed to purchase groceries, provisions, and horse feed while his work was in progress, and applied to plaintiffs for credit. They investigated his financial standing, and, finding it unsatisfactory, refused to extend credit to him. He proposed to give them orders on defendants, directing the latter to pay plaintiffs for any purchases out of the indebtedness which would accrue in his favor from defendants on account of construction work. Pursuant to this arrangement, he executed four orders, all of the same date, June 27, 1902, duly signed and acknowledged. Order No. 1 was, except the acknowledgment, as follows: "St. Louis, June 27, 1902. Richard & James Rothwell, City—Gentlemen: Please pay to Wegmann Bros. the amount of money that will be due me for work performed by me during the month of June, 1902, under my subcontract for work on Central Belt Railway, for work as per engineer's estimate. Yours respectfully, B. W. Goiens." The other three orders were exactly like the foregoing, except that they were, respectively, for money that would be due Goiens for work performed during the months of July, August, and September. According to the testimony of Theodore Wegmann, Goiens had proposed to turn over his pay roll to plaintiffs. After the foregoing orders had been given, Theodore Wegmann took them to Rothwell Bros. to ascertain if they would be accepted; that is, if Rothwell Bros. would agree to pay plaintiffs the money accruing to Goiens during each of said months. Whatever arrangement there was between plaintiffs and defendants was made in an interview between Theodore Wegmann and James Rothwell.

According to said Wegmann's testimony, he proposed to Rothwell that, if the latter would accept the orders and agree to pay over the amount of money due Goiens each month, plaintiffs would give credit to Goiens. Theodore Wegmann said James Rothwell agreed to do that, saying he would turn over every cent that fell due each month to Goiens. The testimony for plaintiffs is that, pursuant to this arrangement, Goiens was permitted to run an account amounting to $4,774.90, during the months of June, July, and part of August, when further credit was refused for a reason which will appear. About July 15th Rothwell Bros. turned over to plaintiffs $1,011.94 as the sum owing Goiens for work during the month of June, less 10 per cent. It should be stated that defendants had the right to reserve 10 per cent. of the monthly earnings of Goiens, in order to insure faithful performance of his contract. The check given for work done in June overpaid the account Goiens had run with plaintiffs during that month in the sum of $350, and plaintiffs paid the surplus to Goiens. The latter's account with plaintiffs in July was $2,872.85. On August 26th Rothwell Bros. turned over to plaintiffs, as the balance due Goiens for the month of July, $1,239.50, which left a deficit in the Goiens account for July of $1,633.50. On the August account plaintiffs were paid $590.96, leaving a balance for that month which, when added to the balance left in July, made a total deficit of $2,245.78. For this reason no further credit was extended to Goiens.

The present action was brought to recover said balance, on allegations that the payments made by Rothwell Bros. to plaintiffs fell far short of the indebtedness which had accrued to Goiens from defendants for his work; in other words, that defendants have in their hands money owing to Goiens sufficient to satisfy plaintiffs' demand, and which defendants had agreed to pay plaintiffs. In defense of the action defendants alleged a contract between them and plaintiffs which diverges in important particulars from the one alleged and testified to by plaintiffs. James Rothwell swore that, instead of agreeing to pay plaintiffs the full amount, less...