Welsh v. Buck

• Decision Date: 05 January 1925
• Docket Number: 4127
• Citation: 64 Utah 579,232 P. 911
• Parties: WELSH, DRISCOLL & BUCK v. BUCK
• Court: Utah Supreme Court

232 P. 911

64 Utah 579

WELSH, DRISCOLL & BUCK v. BUCK

No. 4127

Supreme Court of Utah

January 5, 1925

Appeal from District Court, Third District, Summit County; G. A Iverson, Judge.

Action by Welsh, Driscoll & Buck, a corporation, against W. J. Buck executor of the estate of William J. Wilson, deceased. Judgment for plaintiff, and defendant appeals from an order denying new trial.

AFFIRMED.

Walton & Walton, of Salt Lake City, for appellant.

W. I Snyder, of Salt Lake City, for respondent.

ERICKSON, District Judge. WEBER, C. J., and GIDEON, FRICK, and CHERRY, JJ., concur. THURMAN, J., did not participate.

OPINION

ERICKSON, District Judge.

The plaintiff (respondent herein) brought this action against the defendant (appellant herein) to recover upon two causes of action: (1) Upon an account stated for $ 6,958.61 alleged to have been due in September, 1918; (2) for goods, wares and merchandise amounting to $ 836.97 on September 1, 1918, for which demands judgment was prayed.

Defendant's answer whereupon issues were joined denied that there was anything due from defendant to the plaintiff; also claimed that a proper claim was never presented to the said executor in that it was not duly verified; or that it was ever presented at all by reason of the alleged personal interest of the said executor in the claim.

Certain provisions of the Comp. Laws of Utah 1917, were pleaded as a bar to the action, viz., sections 6466, 6467, 6474, 7648, 7653, and 7665. Laches was also pleaded.

It was also pleaded in the said answer that plaintiff had previously expressly waived all recourse against the general assets of said estate, and was therefore estopped from maintaining this action for the reason, as alleged, that on the 18th day of December, 1915, and the 13th day of February, 1917, in the district court of Wasatch county, in a certain action between the plaintiff herein and Henry Welsh as plaintiffs, and William J. Buck as executor of the estate of William J. Wilson, deceased, and Medora Wilson Moline as defendants, for the same cause of action as set forth in the complaint herein, judgment was duly given and made that plaintiffs take nothing by their said action, and that the title to all the real estate belonging to said estate and claimed by plaintiff herein to be the subject of the alleged mining partnerships should be and was quieted in the said defendants as against each and every claim of said plaintiffs.

Upon the issues as thus joined in this action the case was tried to the district court of Summit county without a jury, resulting in a judgment in favor of the plaintiff for the full amount sued upon, and from an order denying defendant's motion for a new trial this appeal is prosecuted.

The assignments of error relied upon for a reversal of this action, as presented in defendant's brief, are as follows: The evidence fails to prove that there was an account stated; that plaintiff failed to establish its second cause of action; that plaintiff has waived all right to pursue the general assets of the estate; that there was no legal presentation of any claim against the estate, and that plaintiff is barred by the judgment of the district court.

The evidence, briefly stated, is to the effect that the plaintiff, a corporation, is now, and for many years last past has been, engaged in general merchandising in Park City, Utah, and that for several years prior to December 31, 1911, one William John Wilson, a miner by vocation, lived at Park City and was engaged in the working and development of certain mining properties in that vicinity, and that practically all his supplies for his own use and for working at the mines were purchased from the plaintiff. A running account between the plaintiff and the said William John Wilson had been carried on for quite a number of years.

The evidence also shows that the plaintiff employed what is known as the Elliot-Fischer Billing Machine system of book-keeping, which consisted of sales slips in triplicate made by the clerk waiting on the customer, of which copies were sent to the office for approval, and when approved the merchandise was delivered to the customer, either in person or by delivery team, together with the original sales slips. Those retained were held until night, and then turned over at the office, and next morning segregated and charged to the accounts of the different customers in the loose-leaf ledger made in duplicate. Each month a copy of the said ledger account was forwarded to the various customers who had accounts with plaintiff.

The evidence further shows that the said William John Wilson, along about or a few days prior to December 31, 1911, had complained to the manager of the said plaintiff that there were errors in his accounts as it appeared that certain charges were made in his personal account that rightly belonged to the accounts of two certain mining companies, viz., the Agathos Mining Company and the South Boulder Basin. Thereupon the manager suggested that Wilson bring to the store all of his statements and meet with Agnes Harrington, one of the employes of the plaintiff who had such matters in charge, and have the same rectified. On or about December 31, 1911, the said William John Wilson appeared at Plaintiff's store, having in his possession all monthly statements pertaining to his personal accounts and also the monthly statements pertaining to the account of the mining companies. The evidence shows that he had carefully gone over these accounts, and had written upon a piece of paper the charges in his personal account which belonged to one or the other of the mining accounts. These charges were handed to Miss Harrington. He read them from the statement, and she added them on the adding machine. They were checked back again, and the statement was shown to Wilson, who thereupon stated that that was satisfactory and everything had been properly credited.

Plaintiff's Exhibit A herein, which was identified by the witness Harrington and received as evidence in this case, dated December 31, 1911, represented as the personal account of William John Wilson, shows first a debit of $ 8,620.58, and then follow certain credits which the witness testified had been erroneously charged to said personal account. Such charges belonged to the one or the other of the mining companies. After these charges had been deducted the account showed a balance due from Wilson to the plaintiff in the sum of $ 1,142.43.

The evidence also shows that plaintiff's Exhibits C and D, being the accounts of the Agathos Mining Company and the South Boulder Basin, respectively with the said plaintiff, disclose the fact that the amounts which had been charged to the personal account of Wilson and thereafter deducted appear as charges in the respective accounts of the mining companies as shown by Exhibits C and D, and they were the same as had been credited on Wilson's personal account.

The evidence further shows that Wilson owned a one-fourth undivided interest in the mining claims of said companies, and that the remaining three-fourths thereof were owned by William J. Buck and Henry Welsh, respectively. Wilson, being a one-fourth owner in the properties, was therefore liable for one-fourth of the operating expenses, of which he had had personal charge and had personally ordered all of the goods and supplies and moneys required for the operation of the property.

The evidence further shows that on July 22, 1912, the said William John Wilson died at Park City, Utah, and on March 15 1913, William J. Buck was appointed administrator. ...