50 Ind. App. 241 | Ind. Ct. App. | 1912
— Appellee brought this action against appellant to recover payment for a carload of heading sold and delivered by the former to the latter.
A complaint in one paragraph, answer in four paragraphs: (1) general denial; (2) payment; (3) accord and satisfaction; (4) that appellant purchased from appellee a carload of hoops which he paid for in cash; that they were shipped to one of appellant’s customers, who refused to receive them on account of defective quality, whereupon appellee ordered them shipped to another point, and received them back, by reason of which appellee was indebted to appellant, which indebtedness he asked to have set off against any amount found due on account of the demand in suit;
The questions presented are covered by the assignment of errors based on the exception to the conclusion of law, and on the overruling of the motion for a new trial.
Prom the findings it appears that during the time covered by the various transactions between appellant and appellee, the former was engaged as a wholesale dealer and jobber in barrel staves, heading and hoops, under the name of Lawrenceburg Barrel Company, of Lawrenceburg, Indiana, and Central States Cooperage Company, of New Castle, Indiana, and was the sole owner of both concerns. On March 5, 1908, appellant, in the name of Central States Cooperage Company ordered from appellee a car of hoops shipped to the Cooperative Flint Class Company, of Beaver Palls, Pennsylvania, the bill therefor amounting to $583.25, which was subject to a -discount of one per cent, if paid within ten days from date of invoice. The glass company received and unloaded the hoops, and after using 3,750 of one kind, and 12,850 of another, reloaded the remainder in a car, and shipped them on appellant’s order, in disobedience of appellee’s order, to the Warren Cooperage Company, of Warren, Ohio. On April 4, appellant, in- the name of Central States Cooperage Company purchased from appellee hoops amounting to $612. On May 20 appellant ordered from appellee, in the name of the Lawrenceburg Barrel Company, heading amounting to $701.40. In June, 1908, appellee placed in the hands of Brown & Beard, attorneys at New Castle, Indiana, a claim for-$617.84, against appellant, contracted in the name of the Central States Cooperage Company, debit and credit items making up the claim as follows :
*244 DEBIT CREDIT
March. 13th, Car March 21, check
No. 26,493 (cov- to apply on car
ering order of No. 26,493, (be-
March 5, 1908). $583 25 ing payment on
April 4, Car No. order of March
7326 (covering 5) ............ $571 58
order of April 4, March 21,1% dis-
1908) ......... 612 00 count on order of
- March 5....... 5 83
Total debit . .$1,195 25 --
577 41 Total credit .. $577 41
Balance due June
8/08.......... $617 84
At the time said claim was placed in the hands of said attorneys, appellee did not know that appellant was the sole owner of the Lawrenceburg Barrel Company, and Central States Cooperage Company, or that either company bore any relation to the other, nor did said attorneys know at that time, or at the time it was presented for payment, that appellant was financially interested in either of said companies. Said claim was the only one these attorneys ever had against appellant or either of said companies, for collection, in favor of appellee; that the items of said account were read over to appellant before he paid the same, and it and no other was paid by him to the attorneys; that said attorneys received a check from appellant for $617.84, and through a misapprehension, misunderstanding and mistake, receipted appellant “In full payment of all obligations against the Central States Cooperage Company and Lawrenceburg Barrel Company, on account of South Whitley Hoop Company.” The payment made by appellant on March 21 of $577.41, and the payment of $617.84 to the attorneys fully paid the orders of March 5 and April 4; that the order given May 20, amounting tO' $701.40, has never been paid, and the same was due July 20, 1908, and from that time to the date of the trial there was due as
The conclusion of law is unquestionably supported by the facts specially found. This proposition is not, and cannot be seriously controverted, hence we look to the causes assigned and relied on by appellant for a new trial, namely, the decision of the court is not sustained by sufficient evidence, and is contrary to law.
Under these assignments two questions only are discussed: (1) Was appellant, as against the claim sued on, entitled to a credit of $571.28, paid by him on account of the Beaver Palls ear? (2) Was there an accord and satisfaction between the parties of all claims and accounts between them which waá settled and paid? These questions relate to the disposition of the issues formed by the general denial to the third and fourth paragraphs of answer.,
The third paragraph was founded on a check for $617.84, drawn by the Central States Cooperage Company to Brown & Beard, attorneys, and attached thereto was the statement “to be accepted in full payment of all obligations against Central States Cooperage Company and Lawrencburg Barrel Company, on account of South Whitley Hoop Company.” The cheek was indorsed “Brown & Beard, Attys. for South Whitley Hoop Company.”' The check was detached and cashed by said attorneys at the bank on which it was drawn in New Castle, Indiana. These facts and others are pleaded as an accord and satisfaction of the claim sued on.
The evidence in this case involved three orders given by appellant to appellee for cooperage material. The first two were given in the name of Central States Cooperage Company, New Castle, Indiana. Appellee claims that the balance due on account of these orders only was paid to Brown & Beard, attorneys, July 2. The other order, which gave rise to the account in suit, was given in the- name of Lawrenceburg Barrel Company, Lawreneeburg, Indiana, and ap
It appears that appellant was doing business under these two company names. The first of said orders, given to appellee, was dated March 5, 1908, for a carload of hoops for the Cooperative Flint Glass Company, Beaver Palls, Pennsylvania, and to which we will hereafter refer as the Beaver Palls car. This car was shipped by appellee March 13, and arrived at Beaver Palls March 20 or 21. The consignee immediately unloaded the car, placed the hoops in its stock shed, and at once began using them. Fourteen days after the ear had been unloaded, and 16,000 to 17,000 hoops used, the glass company informed appellant that these hoops were of inferior quality, and that they would not accept them at the price charged. Appellant immediately took this matter up with appellee, and a number of letters and telegrams with reference thereto were sent by one to the other during the months of April, May and June. In May, after appellee had notified appellant that it would not receive the car back, that the glass company had unloaded it; that the coils had been broken apart and the hoops generally mixed up, and that it would expect payment for the hoops, the glass company, on appellant’s order, reloaded the balance of the hoops May 26, and shipped them to the Warren Cooperage Company, Warren, Ohio. On May 29 appellant notified appellee that the hoops had been shipped, and enclosed to it the bill of lading for the car. Appellee immediately notified the Warren Cooperage Company as follows: “Do not accept car hoops billed to you from Beaver Palls,” and also notified appellant of this action. On June 27 appellant wrote appellee as follows: ■“We are ready to settle with you on the car of stock shipped to the Lawrenceburg Barrel Company, also to ourselves (Ashland Car). There being a balance due of $675.40.” Then follows a statement showing the amount due on account of the Ashland car, and the Lawrenceburg car, in which statement appellant took credit for the check given on ac
Appellant, under the evidence here disclosed, was bound to know that the attorneys with whom he was dealing had no general authority to compromise a claim put in their hands for eollectiori by receiving a sum less than its face value, or in that connection to compromise other demands between him and their client, of which they had no knowledge. It was their duty to collect the account placed in their hands, and there it ended.
It does not appear that appellee ever saw or knew the contents of the paper composing the cheek and other memoranda which appellant gave to the attorneys, and there is no evidence indicating that a delay on the part of the attorneys to act would in the least jeopardize their client’s interest. It seems to us, under the evidence in this case, the attorneys were without any authority from their client to make any compromise, and if they did, their client was at liberty to ignore the same and treat such action as a nullity. Jones v. Inness (1884), 32 Kan. 177, 4 Pac. 95; Rousaville v. Hazen (1885), 33 Kan. 71, 5 Pac. 422; Solomon R. Co. v. Jones (1885), 34 Kan. 443, 458, 8 Pac. 730; Sharpe v. Williams (1889), 41 Kan. 56, 20 Pac. 497; 4 Cyc. 945.
The contention of appellant is, that appellee’s failure to deny under oath the execution of what he designates a receipt given by Brown & Beard by reason of their indorsement of the check, amounted to an admission of the authority of the attorneys to execute it, and the introduction in evidence of the check and the statement or receipt accompanying the same, was conclusive proof of the accord and satisfaction as averred in the third paragraph of answer.
Judgment affirmed.
Note.- — Reported in 98 N. E. 194. See, also, under (1) 3 Cyc. 360; (2, 3) 1 Cyc. 348; (5) 4 Cyc. 951, 952; (6) 31 Cyc. 529, 530; (7) 1 Cyc. 348. As to the right of an attorney to make a compromise of his client’s cause of action, see 21 Ann. Cas. 577. As to the validity of an accord and satisfaction by an attorney, see 100 Am. St. 403. On the question of attorney’s loss of compensation by compromising case without authority, see 42 L. R. A. (N. S.) 852. As to implied power of attorney to compromise cause of action, see 31 L. R. A. (N. S.) 523.