Wasmuth-Endicott Co. v. Richards

McMahan, J.

This is an action by appellant against appellee to recover the amount due and owing appellant by the Woods-Richards Company for material sold and delivered to that company and which account it is alleged appellee assumed and agreed to pay. The court sustained a demurrer to the complaint, hence this appeal.

The complaint alleges the sale to the Woods-Richards Company; that appellee was interested in that company; that the company having failed to pay any part of the account and the same being past due, appellant wrote a letter to appellee calling his attention to the condition of the account and referring to a letter appellant had received from one of its representatives saying he had interviewed appellee relative to the account, and that appellee was making an effort to clean up the affairs of the company and would be able to pay the account within thirty to sixty days; that the sixty days were up; that appellant understood a receiver had been appointed for the company, but that appellant was willing to forego filing its claim with the receiver and to give appellee an opportunity to work to the advantage of himseif and of his company, if assured of some result, and indicating a preference to give appellee a reasonable time to “clean up the affairs of the company” without being pressed, if it could be done within a reasonable time. This letter closed with a statement that appellant should have some word from appellee in reference to the matter by return mail. About a week later appellee wrote a letter to appellant, excusing his delay in answering, saying he had expected to settle the account before that time; that he had a trade on that would clean up all accounts against the three houses in which the materials sold by appellant had been used, but that the matter was being held up; that he, .appellee, was doing all he could to pay all the accounts of the Woods-Richards Company, and would assume and pay appellant’s account as soon as possible. Further expressions of a desire and intention to pay were expressed, and closed with a trust that he could count on a further forbearance on the part of appellant. The complaint alleges that appellant answered the above letter from appellee, and therein accepted appellee’s proposition and agreed to extend time for payment of the account until the last of November.

Appellee has not favored us with a brief, but it is suggested in appellant’s brief that the demurrer was sustained upon the theory that the complaint failed to show any consideration for the agreement of appellant to forbear bringing suit. We are of the opinion that appellant has shown prima facie error in the sustaining of the demurrer to the complaint.

The cause is therefore reversed, with directions to overrule the demurrer and for further proceedings.

Dausman, J., absent.