Klausmann Brewery Co. v. Schoenlau

32 Mo. App. 357 | Mo. Ct. App. | 1888

Rombauer, P. J.,

delivered the opinion of the court.

We are called upon to review the propriety of the action of the trial court in instructing the jury to find a verdict for plaintiff.

The suit is on an open account showing a balance of five hundred and eight dollars in favor of plaintiff. The correctness of the items constituting the account is admitted, and the sole defense is payment.

The defendant’s evidence tends to show that he was a saloon-keeper, who for thirteen years and more had purchased his beer from the plaintiff. In August, 1885, there was a balance of $1,786.50, due the plaintiff from defendant, on account of these purchases; the defendant then paid to plaintiff one hundred dollars on account and the plaintiff gave him a voluntary credit of $086.50, leaving a balance of one thousand dollars due. The plaintiff at the date of said settlement promised the defendant, that thereafter, whenever he would pay any amount of the old account, he should receive double credit for such payments. The parties continued to deal with each other thereafter, and the defendant made payments from time to time on account, which were credited to him on his pass-book. In October, 1886, a new pass-book was given to the defendant beginning with the item, “To balance as per agreement on settlement, $1,159.85,” which Item includes this balance of one thousand dollars. The pass-book was continuously in the defendant’s possession from that date until June 28, 1887, and numerous payments were made by him, which were entered partly by himself and partly by the plaintiff in the book as made, and not for double the amount. At the last-named date the defendant called upon plaintiff and' handed its secretary a bundle of money containing five hundred dollars, stating that he had money enough to square his account. At that time the account in the pass-book, if footed up, would have shown a balance of $1,042.20, against the defendant. The defendant then left the office but returned a fe.w minutes thereafter, when the pass-book was handed to him showing a credit of five hundred dollars, and he refused to receive it, stating that he was entitled to a credit of one thousand dollars as per agreement.

This is all the testimony which bears on the question under consideration.

The defendant claims that he was entitled to go to the jury on the question of payment on two grounds : (1) Because there was substantial evidence to show that the plaintiff had agreed to give him double credit on the old account, upon a sufficient new consideration, to-wit, that he would continue to buy his beer from the plaintiff for a reasonable time ; (2) that he had made a specific tender to the plaintiff of the five hundred dollars with an asserted claim that he was entitled to double credit therefor, and the plaintiff by retaining the money accepted the conditions of the tender.

That the payment in money of a part of an undisputed claim, which is due, is not a good satisfaction of the entire claim, even if accepted in full satisfaction, unless there is a new agreement with a new consideration to support it, is elementary. Riley v. Kershan, 52 Mo. 224, 226. This at once disposes of the defendant’s second point touching a conditional tender. The tender in Adams v. Helm, 55 Mo. 470, was not a tender of money but of notes and a deed of trust, and as the rule above stated applies to money only, has no application. There is even no evidence of a tender of a certain sum of money and its acceptance in full satisfaction, because all that the defendant claims is that in handing the uncounted package to plaintiff’s secretary, he told him to square his book, that he had money enough there now to get straight, without mentioning any amount.

There is no evidence whatever of a new agreement with a new consideration to support it. The defendant claims that such evidence is to be found in the undisputed fact that defendant continued to buy his beer of plaintiff after the settlement in August, 1885, for a period of almost two years. The vice of this argument is that there is no evidence, either direct or inferential, that the defendant bound himself to buy his beer from the plaintiff for any time whatever. Not the fact of his doing so, but his obligation to do so. is the one to furnish a new consideration.

We fully concur with defendant’s counsel in his argument that the adequacy of the consideration, in the absence of fraud, is immaterial, but being unable to find substantial evidence in the record of -any consideration whatever, must conclude that the instruction to find for plaintiff was correct, since the correctness of the account was admitted, and there was no substantial -evidence to support the defense of payment.

Judgment affirmed.

All concur.