Parker v. Dantzler Foundry & Machine Works

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment against appellant ,in a suit instituted by him to recover of appellee a balance alleged to be due on an account for goods sold and delivered. The cause was submitted to the judge to be decided without a jury upon an agreed statement of facts which the reporter will set out in full, from which it will be observed that the amount here in controversy is the exact amount admitted to be due appellee by Menge & Sons, and which it expected to be credited with when it ordered the goods here in controversy. The contention of appellant is that appellee is attempting to use the debt due it by Menge & Sons as a set-off against a debt due him for goods sold and delivered after he took charge of the business of Menge & Sons as receiver. Appellee disclaims any such intention, and simply denies any liability whatever to appellant because of the shipment to it by appellant of the goods ordered by it from Menge & Sons. . Appellant can recover on the item of the account sued on representing the price of the goods ordered by appellee from Menge & Sons and shipped by him only upon a promise, either express or implied, by appellee to pay him therefor. He does, and could, not successfully claim that appellee made any such express promise, and no such promise can be here implied, for the reason that the goods were used by appellee before it learned that they were shipped by appellant, and not by ’ Menge & Sons, it being “elementary law that a party has a right to select [135] and determine with whom he will contract and cannot have another person thrust upon him without his consent.” 1 Elliott on Contracts, section 102; 2 Elliott on Contracts, section 1408; 35 Cyc. 60; Boulton v. Jones, 2 H. & H. 564; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Randolph Iron Co. v. Elliott, 34 N. J. Law, 184. The wisdom of this rule is manifest here, for appellee has a perfect defense by way of set off against the party with whom it thought it was contracting, which defense appellant claims cannot be availed of against him. That appellant must lose the balance unpaid on the price of the goods in so far as the recovery thereof from appellee is concerned is not here material, for he brought that trouble upon himself by shipping the goods without notifying appellee that its order therefor was being filled by him, and not by Menge & Sons, the party to whom the order was given, so that appellee could have exercised its right to accept or reject them. But it is said by counsel for appellant that this principle cannot be availed of here, for the reason that under the rules governing the application of payments this item of the áccount sued on must be held to have been paid. The agreed statement of facts does nof disclose that the payments were applied by either appellee or appellant to any particular items of the account, and the court should not apply them so as to cause appellee to pay money which it does not owe and did not intend to pay, except in the manner disclosed by the agreed statement of facts, that is to say, by, in effect, setting off against it the debt due it by Menge & Sons. The fact that appellee paid a part of the sum demanded of it by appellant for these goods does not constitute a ratification by it of appellant’s substitution of himself for Menge & Sons in the sale there [136] of; such payment being wholly gratuitous and imposing no obligation whatever on appellee. Affirmed.