Wakefield v. Spoon

The opinion of the Court was delivered by Mr. Justice Gage. When this cause was tried on Circuit, the late and lamented Julius E. Boggs appeared for the defendant. In this Court the appearance is by Mr. Dagnall; and that gentleman asked for a serious consideration of the cause because of Mr. Boggs’ illness at the trial. The action is for the purchase price, and interest thereon, of commercial fertilizers, alleged to have been sold by plaintiff to defendant during the years 1909 and 1910, and on an alleged promise by defendant to pay therefor on the 1st of November of each of the said years. The defendant denied that he had bought fertilizers, but that he sold them to farmers for the plaintiff for a commission on the price. He further alleged that he had fully accounted with plaintiff, and he owed him nothing. The jury found for the plaintiff $1,688.81 principal, and $442.23 interest thereon. *104 The defendant appeals, and has made nine exceptions. Bet them be reported. They shall not be considered in order, and some of them not at all. We shall follow the argument of Mr. Dagnall. The major issue of fact below was the character of the contract betwixt the-parties: Was it that of vendor and vendee, or was it that of principal and agent? The jury found the fact for the plaintiff, and that concludes the issue, unless the jury was furnished incompetent and hurtful testimony, or was denied competent and helpful testimony. The appellant charges by exception that such testimony was admitted, and such testimony was denied. 1 The argument at bar stressed the illegal admission of the contract betwixt the plaintiff and the Anderson Phosphate & Oil Company. That contract was plainly incompetent as res inter alios acta. But it was admitted by the Court to show, by its terms, that when the products of the Anderson Company were sold by anybody on a credit, and notes were made therefor (as in the case at bar), such notes of any purchaser should name therein as payee the Anderson Company. And the inference to be drawn from that practice was that the simple naming of the Anderson Company as payee did not constitute that company as the real party in interest, and did not negative the plaintiff’s contention that he, as principal and owner and vendor, sold outright the fertilizers to the defendant as vendee. An inspection of the contract shows that'there was no such provision in it which requires the name of the Anderson Company to be inserted in'all notes as payee. The contract, therefore, did not show the fact it was introduced to show; it inferentially showed the contrary, and was therefore not hurtful to the defendant. *105 2 *104 There was another objected paper offered in evidence, in reply by the plaintiff. It was a note by Simpson to the Anderson Company for fertilizers sold Simpson by defend *105 ant, and the payment thereof by Simpson’s check to Spoon. The Court considered that as a circumstance to show that, although the note was payable to the Anderson Company, Spoon treated it as his own, and accepted payment of it. The evidence was competent; its relevancy was only remote; and the judgment of the Court thereabout will not be disturbed; 3 There was another paper offered by defendant and ruled out as incompetent; it was a note and mortgage of Sherard to plaintiff for fertilizers sold Sherard by Spoon. At most that was only a declaration by Spoon that Wakefield, and not Spoon, owned the fertilizers, and it was therefore incompetent. 4 There was put to Vandiver, by plaintiff’s counsel, a question deemed incompetent by the defendant’s counsel. It may have been, but the witness did not answer the question. Reference to the question is made in the fifth exception. All the other exceptions, except a part of the first, next to be considered, refer to matters of fact; and they were not pressed by Mr. Dagnall. 5 There remains yet to be considered the only question of importance in the case. The Court charged the jury: “So your verdict will be either we find for the plaintiff so many dollars * * * and, if you find interest, make the calculations,” etc. The appellant contends that interest was not allowable on the principal amount, and the charge was equivalent to a contrary instruction. The contention is sound. It is true the allegation of the complaint is: “That the accounts became due and payable on or before the 1st day of November, 1909, and the 1st day of November, 1910, respectively.” But there is no testimony tending to prove that allegation. The obligation to pay was not evidenced by writing. Thereabout the- plaintiff testified: *106 “I never have got him that far along. Q. Why didn’t you have him to give you his note ? A. I never have gotten him that near a settlement, sir.” The statute declares what sums of money shall draw interest. Code, sec. 2516. Before that enactment there was much contrariety of opinion about when interest is allowable. The statute does not embrace in its terms a transaction like this. The sum of money here was not “ascertained” by plaintiff’s own testimony; nor is this an “account stated.” The fertilizers were sold and delivered at separate days. There were many payments made by defendant on separate days. There is no evidence that the defendant acknowledged any statement of the account to be true, and to be then due. There is no testimony that the defendant'was furnished with a copy of the account before the action was begun. The essence of an account stated is: (1) That the account be actually stated; and (2) that the parties thereto shall agree expressly or impliedly that it is a true statement, and is due to be paid, then or at some other specified time. In the case at bar the plaintiff testified, “I have tried again and again to get a settlement out of him.” There is no testimony that the defendant ever expressly or impliedly agreed that he was at any specified time due and owing the defendant any specified sum of money. We are, therefore, of the opinion that the Court should have charged the jury that the interest was not allowable. The sum of $442.23, which the jury found as interest, must, therefore, be remitted, on the record by the plaintiff, within 20 days after the filing of this opinion, else there shall be a new trial. It is so ordered. Footnotes [1] Footnote.-—As to what constitutes an “account stated,” see notes 27 I,. R. A. 811 and 45 U. R. A. (N. S.) 534 to 538. Interest on account stated, see 23 L. R. A. (N. S.) 789.