Wooldridge v. Hopkins

TRIMBLE, P. J.- — This is a suit on an account for lumber and materials alleged to bave been sold by plaintiff to defendant at tbe latter’s request. Tbe amount for which judgment was asked in the amended petition is $2544.30 with interest from January 24, 1919, the date of demand. The answer was a general denial. Trial was had, and on November 7, 1923, the jury returned a verdict for plaintiff in the sum of $3180.45. The defendant appealed. *1036 His first contention is that the demurrer offered at the close of all the evidence should have been sustained. In order to understand this contention in all its details, it may be well to state that the lumber and materials sold, and of which the account is made up, were used in the construction of a house erected on the east portion of a 300-acre tract of land in which the defendant had a life estate and his son Carl had an undivided one-third interest subject to said life estate, the house erected being in fact for the use of Carl, and into which he and his family moved when it was complete, but there is no evidence to show that plaintiff knew this when the lumber was bought, or when, if ever, he ascertained it. One basis for the demurrer is that the lumber and materials were not sold to the defendant but to his son Carl. It may be conceded at once that there is evidence in behalf of defendant' tending to show that Carl, and not the defendant, bought the lumber; but on the other hand there is evidence in plaintiff’s behalf tending to show that defendant himself bought it. This evidence is that before any of such materials were furnished, the defendant himself told plaintiff that he “wanted to build a nice house and wanted to get the lumber” for it. To which plaintiff agreed, and, in the course of the conversation, he remarked to defendant that the latter had “always been used to a big house.” Shortly thereafter the son Carl came to the plaintiff’s lumber-yard one morning and told plaintiff that his father wanted plaintiff- to ‘ ‘ come up and lay off a foundation for him.” Plaintiff went and found defendant and his wife on the ground, and defendant told plaintiff that they had the plans for the house but were “ ‘loggerheaded’ about where to put it,” that plaintiff marked out or “squared off” the lines for the foundation, locating it just where defendant wanted it; the next day plaintiff was sent for again, and went, and defendant suggested and insisted that the house be made larger, whereupon the foundation lines were changed so as to make the house two feet longer, and the. next morning after that plaintiff was again called back and made the lines still larger, the defendant being present' and seeing and supervising the figures and changes plaintiff made; all the changes made were at the defendant’s suggestion, except the one which placed the house a little further from the rod. This last-mentioned change was suggested by the defendant’s wife. A few days after the foundation lines were thus located, plaintiff began furnishing the lumber, defendant’s son Carl doing most of the hauling of the same from the lumber-yard to the site. He was a witness for defendant and admitted in his testimony that he made no inquiry of plaintiff as to the price of the lumber being obtained, nor did he anywhere deny that he told plaintiff his father wanted plaintiff to come up and lay off the foundation. His testimony, *1037 given in the form of mere conclusions, is that he bought the lumber, he built the house and he owned and lived in it. Plaintiff’s evidence is further that defendant supervised the construction of the house and personally assisted in the work of building it. Defendant admits this but says he did it merely for the purpose of helping his son. It is admitted in defendant’s brief that plaintiff testified that credit for the lumber and materials in question was extended by him to the father. It is further urged by defendant that the plaintiff’s books of account conclusively show that the goods were charged to Carl and that therefore there was no issue to go to the jury as to whom the goods were sold. The books show that they were charged in an account headed “Hopkins” with the word “Carl” to the right thereof and plaintiff testified that the account was against the defendant, but that the name “Carl” was thus placed there so as to keep the items going into the house separate from other purchases made by defendant for other purposes. The account against defendant attached to the petition and marked Exhibit A was an exact reproduction and list of the items of the account thus shown on the books. ■ From the foregoing, we think it is manifest that it was a question for the jury to say whether there was an original undertaking on defendant’s part to buy and pay for the goods, and to whom the plaintiff sold them or extended credit for them. [Rubey Trust Co. v. Weidner, 174 Mo. 692, 696.] The manner in which the goods were charged or the account kept on plaintiff’s books was not conclusive of that question. [Wittenberg v. Fisher, 183 Mo. App. 347, 351; 29 Am. & Eng. Ency. of Law (2 Ed.), 925; Galamba v. Harrisonville, etc., Co., 191 S. W. 1084, 1085; Bennett v. Robinson, 180 Mo. App. 56, 63.] It is contended that no account against defendant was introduced in evidence, but this proceeds upon the theory that the account as shown on the books was conclusively one against the son and not against the father, which has hereinabove beeh disposed of. Besides, the plaintiff was his own bookkeeper and entered the items himself as they were delivered, and he went over the items personally and swore they were furnished and went into the ■ construction of the house and that the prices charged therefor were reasonable. In addition, it seems conceded in the evidence offered in defendant’s behalf that lumber and materials to the amount of the account in round numbers went into the house. A further contention as to why the demurrer should have been sustained is that plaintiff accepted a note from Carl and his wife and mother in full payment of said account and that plaintiff brought suit thereon and thereby elected to pursue an inconsistent *1038 remedy. This is based upon the fact that long after the accrual of the account, Carl, the son, voluntarily, so plaintiff testified, appeared at plaintiff’s office and offered him the note which plaintiff took, and upon the-further fact that at the bottom of the last page of the book account was written the words “By note in full.” Plaintiff’s evidence expressly denies that, in accepting the note thus brought to him by Carl, there was any agreement or understanding between them that the note was accepted in payment of said account. And the notation at the bottom of the last-page of the account does not square or balance the account nor indicate in any way that the account was paid thereby or that nothing further was due thereon. The plaintiff testified that he made the notation merely to show that a note for the total of the account had been taken. If plaintiff merely accepted the note in question without any agreement to take it as payment of the account and to run the risk of the note not being paid, then such acceptance did not extinguish his right to still sue the defendant as the original debtor. [Chorn v. Zollinger, 143 Mo. App. 191, 195; Holland v. Rongey, 168 Mo. 16; Peoples Bank v. Stewart, 152 Mo. App. 314, 330; West Publishing Co. v. Corbett, 165 Mo. App. 7, 12.] And here is the thing that prevents the application of the invoked rule as to the election of inconsistent remedies. Plaintiff is not in the position of being obliged to sue only one of two or more persons, or to rely on one of two different and inconssitent causes of action. Not having accepted the note as payment of the account, he could still sue defendant on the account and Carl on the note; and until either was paid he could obtain judgment on both, though, of course, he would be entitled to but one satisfaction. [Reynolds, Receiver, v. Union Station Bank, 198 Mo. App. 323, 332; Steinbach v. Murphy, 143 Mo. App. 537, 539.] It follows from this that even if he did accept a payment of $100 on the note from Carl and credited said note with that amount, that would make no difference, nor would it matter whether judgment was obtained on the note or not, since plaintiff has never received satisfaction. There was no error in plaintiff’s-instruction A for it required the jury to find, in addition to all the other necessary matters, that said account had' not been paid, which would include payment by note or in any other way. And in defendant’s given instruction No. 6, the jury were explicitly told that if the note was accepted as payment of the account, they must find for defendant. It seems that by mistake in some way the amount recovered was $400 more than was due, including interest. This, plaintiff says in bis brief, was cured by the entry of a remittitur of $400. The abstract of the record fails to show that such remittitur was made. However, defendant’s counsel conceded in the oral argument that *1039 such remittitur was entered. Such being the fact, the judgment is affirmed for the -amount remaining after the deduction of such remittitur. The other judges concur. Footnotes [1] ^Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 909, n. 81; 4CJ, p. 861, n. 24; p. 912, n. 77; p. 1004, n. 63; Election of Remedies, 20CJ, p. 8, n. 65; Payment, 30Cyc, p. 1197, n. 33; Sales, 35Cye, p. 43, n. 85, 86; p. 44, n. 91; p. 269, n. 43, 44.