78 Mo. App. 456 | Mo. Ct. App. | 1899
The case was referred and the referee found in favor of the plaintiff, disallowing the payments. But the court sustained Hoffman’s exceptions to the referee’s, report, and the cause then being submitted on said report and evidence taken by the referee, judgment was entered allowing said payments, and thereupon plaintiff appealed.
No instructions being asked or given, we are called on to decide whether or not the judgment of the lower court should be sustained on the evidence contained in the record.
Stewart Brothers were building contractors at Sedalia and ordinarily purchased their lumber from the plaintiff, the latter keeping a separate account for each building. It seems that when the Stewarts undertook the Hoffman contract they were in need of ready money, and to aid them, Waddell and Zimmerman, plaintiff’s managing officers, went their security on a note for $1,000 to a Sedalia bank, whereby the Stewarts were enabled to raise that amount of money. This note was dated September 1, 1892, was due in ninety days, and was renewed several times, until May, 1894, when said sureties paid it off — Stewarts having in the meantime become insolvent. In this suit plaintiff claims the right to apply the payments before mentioned (made in September and October, 1892) to the satisfaction of this $1,000 which Waddell and Zimmerman had been forced to pay on the Stew-Brothers’ note on which they were securities.
At the trial plaintiff’s ledger and cash book (the latter being the book of original entries) were introduced, and there it appeared that when the three payments were made (to wit: September 7, 26, and October 17, 1892) the respective amounts were entered in both books to the credit of “Stewart Bros. Hoffman Building.” In this ledger account (Stewart Brothers’ account of Hoffman building) there were charged on the left hand page the various items of lumber that were
The question is now, should this plaintiff be permitted, to take away these three payments entered on its books to the credit of the Hoffman building account, and appropriate the same to the satisfaction of Stewart Brothers’ liability to Waddell and Zimmerman arising from their payment of the $1,000 note on which they (said Waddell and Zimmerman) were securities. The trial court has correctly answered this in the negative.
Plaintiff can not be allowed to appropriate the payments in question to the purpose attempted, under any view of the foregoing rule. In the first place, at the time these payments were made, two separate debts did not exist between plaintiff and the Stewart Brothers. The latter owed the plaintiff for lumber that went into the Hoffman house, but were not indebted to it on account of the note. This is so for two reasons: first, because the plaintiff corporation was not a party to the note as security or otherwise; and second, if it had been, the security had not then paid the debt and there
But even should we concede that when these payments were made, Stewart Brothers stood indebted to plaintiff both on account of the lumber and on account of the note, and further that Stewart Brothers failed to elect upon which said payments should apply, even then plaintiff’s contention can not be upheld, for the evidence overwhelmingly shows that the creditor saw proper to, and did apply the payments to the lumber account. The books of account (kept in the most solemn manner by plaintiff’s officers) 'clearly evince an intention at the time to devote this $1,000 as a partial payment on the lumber account. We have read with care the evidence adduced at the trial and can come to no other conclusion. At all events this was manifestly the holding of the trial judge and we are authorized to defer to his finding. The account books of the creditor, though not conclusive, are competent evidence to show the appropriation intended. Van Rensselaer v. Roberts, 5 Denio (N. V.), 470. At most, plaintiff’s testimony would only tend to prove that the officers of the plaintiff corporation intended to hold these payments to reimburse themselves for any liability they might incur by reason of having indorsed the note of Stewart Brothers. Their liability then was only contingent; and of course any claim on that account against Stewart Brothers was dependent on a future event — that is whether or not the principal on the note should default and the securities be compelled-to pay. In a case of that kind the law will apply the
The judgment is for the right party and will be affirmed.