128 P. 354 | Ariz. | 1912
This is an action on account. The appellee admits the account, but by way of avoidance alleges that the Wing Sen Company had therefore assumed the debt, and had fully paid it before suit was brought. The issue thus formed was tried to a jury, and resulted in a verdict in favor of
Appellant complains of injury in the admission of evidence and of instructions given and refused.
At the close of the taking of the testimony appellant moved for an instructed verdict, which raises the question as to whether the appellee had sufficiently established, by legal and proper evidence, his defense of payment as to entitle the submission of that issue to the jury. The evidence was that on February, 15, 1911, appellee sold his mercantile business to Wing Sen Company. Prior to that date, he carried a general current account with appellant, and on the date of sale was indebted to appellant in the sum of $1,511.28, which account the Wing Sen Company assumed as part of the purchase price of the Wing Wong mercantile business. The evidence is uncontradicted that the Wing Sen Company paid on the Wing Wong account $496.53 in February and March, leaving a balance of $1,014.75 of that account due and owing on April 1, 1911. The Wing Sen Company, soon after purchasing the Wing Wong business, opened a running account with appellant, the March purchases amounting to $289.25. The first statement of account rendered by appellant to the Wing Sen Company included the Wing Wong item of indebtedness of $1,014.75, together with the current purchases of the previous month made by the Wing Sen Company. The payments made by the Wing Sen Company were credited, as shown by the monthly statements rendered by appellant, as general credits. The identity of the $1,014.75 item disappeared with the first statement, and subsequent statements rendered by appellant showed varying balances, sometimes larger and sometimes smaller than the Wing Wong indebtedness. This course of dealing was kept up between appellant and the Wing Sen Company until in August, 1911. During the time the Wing Sen Company had bought of appellant goods valued at $1,382.26, and had paid on account the sum of $1,484.86, the payments made exceeding the purchases in the sum of $102.60. The payments made by the Wing Sen Company were unaccompanied by any instructions as to their application, and the only evidence, aside from the statements rendered by appellant, as to what account they were applied, was the testimony of Albert Miller, the agent of the appellant who
The instruction particularly applicable to the issue, as made by the pleadings and evidence, was as follows: “You are instructed that the assumption of a person’s debt by a third party does not relieve the original debtor from liability to the creditor, even though the creditor is advised of the assumption by the second party. In other words, in this case the fact that the Wing Sen Company agreed to pay this account or debt to Steinfeld & Co., and that Steinfeld & Co. knew that Wing Sen Company had agreed to pay it, would not release Wing Wong from the debt, unless Steinfeld & Co. expressly agreed with Wing Wong to release him, so that in this case the assumption of the debt by Wing Sen Company would not be sufficient to exonerate Wing Wong, unless, in addition to the assumption of the debt, Wing Sen Company had paid the debt. So this case determines, and your verdict will turn upon whether or not the evidence in this case is' sufficient to satisfy you that Wing Sen Company, after assuming this $1,014.75 indebtedness, paid that amount to Steinfeld & Co. on the account of that old debt. If they have done so, and you are satisfied from the evidence that they have done so, you should, by your verdict, find for the defendant. If you are not convinced that they have done so, you should by your verdict find for the plaintiff in the amount that has not been proven to have been paid by Wing Sen Company.”
There is no complaint made of this instruction by appellant, but it contends that several instructions asked were improperly refused. The appellant’s requests that were refused were to
The appellant complains that the court erred to its prejudice-by instructing the jury that payments must be credited as; directed at the time they were made or declined, and asserts, that there was no evidence of any directions as to how any payment should be credited, and that, therefore, the instruction was outside of the evidence and' the issue. It may be-true that this instruction is not supported by any evidence j “but an instruction stating a correct proposition of law is not necessarily misleading, or prejudicial, merely because it is. inapplicable to the facts in evidence, and where it is not so there is no ground for reversal.” 26 Cyc. 1622, note 46; Thornton-Thomas M. Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10; Renfro v. Fresno Ry. Co., 2 Cal. App. 317, 84 Pac. 357. We cannot believe that this instruction misled the jury, or that the verdict was in any way influenced by it.
The court in another instruction called the attention of the-jury to the appellant’s different statements to the Wing Sen Company showing the credits as made by appellant on. such, statements, and suggested that the jury might want to consider the evidence as to where these several payments were credited by appellant when received by it from the Wing Sen Company. Appellant complains of this instruction, and asserts in that connection that the undisputed evidence was that appellant credited all payments upon the Wing Sen Company
The appellant at the time of instituting this suit attached the stock of merchandise of the appellee. Over the objection of the appellant, the court permitted the appellee to introduce the return to the writ showing the articles that had been attached. When it is taken into consideration that the only issue between the parties was as to whether Wing Sen Company had paid the Wing Wong aecount or not, or, differently stated, as to whether the appellee owed appellant anything •or not, it is certainly difficult to see the materiality of such •evidence. It was foreign to any issue on trial, and should not have been allowed to go before the jury. •
It is contended by appellant that this was prejudicial error. It seems to us that would depend on the ultimate fact as to whether appellee did or did not owe the debt sued for. In the former case it could not create prejudice for the law permits attachment as security to any judgment that might be obtained and the jury, as reasonable men, would see the justice of such action, and, if the latter, any feeling of oppression aroused in the jury would be exercised to a proper and correct solution •of the case; that is, in a verdict against the appellant on the main issue. In view of the facts of the whole case, we are satisfied that the admission of this irrelevant testimony did not •excite sympathy for appellee or hostility to appellant, or in any way prejudicially affect the verdict of the jury. 16 Cyc. 1114.
The appellee, while a witness in his own behalf, testified: 4‘Q, What did you owe Mr. Steinfeld at this time? A. I •didn't owe him one cent.” The appellant objected at the proper time to the question, and moved to strike the witness’ answer. Error is assigned on this ruling of the court in permitting the answer and in refusing to strike. Before this •question was asked and answered, appellee had testified that appellant had not asked him to pay anything on account of the debt assumed by the Wing Sen Company, that he had seen and talked with Miller, agent of appellant, every month
The issue in this case was passed upon by a jury under proper instructions. The policy of the law is, or ought to be, to sustain the judgment -of the trial court when it can reasonably be done, and thus put an end to litigation. To effect that very laudable purpose, it is provided in article 6 section 22, •of the constitution of Arizona: “No cause shall be reversed for technical error in pleading or proceedings when upon the whole ease it shall appear that substantial justice has been done.” The admission of the testimony in the two instances named
If any injurious effect resulted in the court’s allowing the witness to state his conclusion, that effect could have been easily removed by cross-examination by appellant. As "Wigmore on Evidence, section 1960, well says: “If there is a real dispute as to the net effect of the facts, these may be brought out in detail on cross-examination.” Iler v. Miller, 78 Neb. 675, 14 L. R. A., N. S., 289, 111 N. W. 589.
Judgment of the trial court is affirmed.
FRANKLIN, C. J., and CUNNINGHAM, J., concur.
NOTE.—As to the general rule for the application of payments on accounts, see note in 96 Am. St. Rep. 62.
As to when the original obligor is discharged under a third person’s agreement to answgr for his debt, see note in 126 Am. St. Rep. 505.