Appeal from the District Court of the Fifth Judicial
McIntosh & Cooke, for Appellant.
James F. Dennis, for Respondent.
By the Court, Norcross, J.:
Appellant instituted its action against respondent to recover the purchase price of certain bills of merchandise sold and delivered to respondent. The complaint was in two counts, the first alleging the sale of merchandise by plaintiff to defendant of the value of $153, and the record was upon an assigned claim in the sum of $190.20 for merchandise sold to appellant by the Joseph P. Dunn Shoe and Leather Company. Respondent, in his answer, confessed the second cause of action, and offered to allow judgment to be taken therefor, but alleged payment as a defense to the first cause of action. The issue was tried by a jury, and a verdict rendered in favor of the plaintiff for the amount of the second cause of action. From the judgment entered on the verdict and from an order denying plaintiff's motion for a new trial, an appeal is taken.
The record presents the sole question as to the sufficiency of the evidence to justify the court or jury in determining in favor of the defendant the issue of payment as to the first cause of action.
The record discloses that the respondent, a merchant in business at Tonopah, Nye County, purchased the two bills of merchandise during the year 1907. The appellant having demanded payment of its account, the defendant wrote a letter to plaintiff of date December 3, 1907, in which, among other things not material, he said: Your favor of the 25th ult. to hand and contents noted. Note that you find my rating absolutely solvent, and I believe that I am, and a great deal more so than two of the old
est and most popular banks here, and they control 8-10th of the deposits of this town. They suspended on the 23 Oct. and have tied up everybody's means to pay, and they have not resumed yet, and do not expect to until after Jan. 1st at least, and then, if they do, it will be on a basis of a series of payments 1% in 3 months, 20% in 6 months, 25% in 9 mos. balance in a year, and they claim, and the Bank Examiner reports them absolutely solvent also. If you wish a draft on either of those banks I will be pleased to send you such in payment of my bill, otherwise, I must confess that I cannot manufacture money to pay you. No direct reply appears to have been made to this letter, but upon the 13th day of December following, the plaintiff forwarded a sight draft on defendant in favor of Sipple Adjustment Company of St. Louis, for the amount in question. The draft was returned unpaid by the bank to which it was sent for collection, with the memorandum indorsed thereon, Party has written direct.
Subsequently, the claim having been put in the hands of the said Sipple Adjustment Company for collection, the Sipple Adjustment Company wrote a letter to the defendant of date December 24th, among other matters not material, saying: We note in your advertisement that you mention have been accepting bank checks all the time.' Now since you can't cash them, please send enough to cover our client's claim and subject to later collection, we will see that you are credited and not bothered further on this matter. Meantime, let us state that Roberts-Johnson will be able to handle the checks the same as cash, and thus relieve the situation with them. We want only what is fair and right, but do insist and urge that you answer this letter immediately with definite payment, for letter writing will not do any good.
To this letter, defendant replied as of date December 28th, as follows: Enclosed find five checks drawn on the State Bank and Trust Co., Tonopah, Nevada, amounting $153.30, and as you state in your letter of the 24th that you will credit my account and thus settle the claim without further bother on this matter. They are all endorsed
payable to Roberts, Johnson, Rand Shoe Co. I would be only too glad to pay off all my indebtedness with State Bank checks, as I have the checks to do it, and they are all representative of the cash deposited. Those have been checked up to the accounts of parties who drew them, and, of course, are collectible; that is, the deposits are back of them. We expect this bank to resume Jan. 2d, and it is now up to you to get your money. Trusting that this will close the incident and awaiting receipted statement, I am yours truly, H. A. McKim.
On June 29, 1908, McIntosh & Cooke, attorneys for plaintiff, wrote to defendant as follows: In re Roberts, Johnson & Rand Shoe Company, vs. Yourself for $153. We are herewith enclosing to you checks as follows: * * * Being the same checks sent by you on proposed settlement of above claim, and rejected by client, for the reasons heretofore stated to you. Clients agreed to accept these subject to later collection,' and as a reasonable time has elapsed and no favorable indications of bank reopening, the condition on which checks were received has not been realized. You fully understand position which client takes and which we take, from the talk had in our office. Clients would certainly not agree to take worthless paper in payment of their just claim, and we anticipate your having much difficulty in trying to make a court so believe.
Witnesses for the plaintiff testified that the Sipple Adjustment Company was never authorized to accept anything but cash in payment for its claim against the defendant, but were instructed to the contrary. Clarence Wise, a witness for the plaintiff, whose deposition was taken, testified that he was credit man for the plaintiff company. He testified that the checks in question on the State Bank and Trust Company were tendered to the plaintiff by the Sipple Adjustment Company, to be credited on the account when collected; that they were received by the plaintiff ...