Glor v. Kelly

McLennan, J. (dissenting):

I cannot concur in the conclusion that the nonsuit in this case was right. The motion was granted upon the theory that it was established by the evidence that James H. Kelly, the defendant’s intestate, had paid for the barrels delivered to him, to one E. H. Carney, who was the agent for the plaintiffs and was conducting the cooper or barrel business for them in the city of Lewiston. The barrels, the value of which this action is brought to recover, were manufactured at Lewiston by the plaintiffs, in the shop of E. H. Carney, and were delivered to defendant’s intestate, James H. Kelly, between July 15 and November 4, 1896, and were of the agreed value of $332.10.

On December. 28, 1896, the plaintiffs wrote to James H. Kelly, defendant’s intestate, as follows :

“ Deo. 28, 1896.

“ J. H. Kelly, Esq.,

“ Lewiston, N. Y.:

“ Deab Sib.—■ Some long time ago we wrote you regarding our account, $324.41, but never heard from you. We must have this money at once in order to meet obligations maturing now, so please send us check by return. Please let us hear from you by return mail.

“ Yours truly,

“ E. & F. GLOR.”

In answer to that letter James H. Kelly sent the following letter:

“ Office of J. II. Kelly, Dealer in Grain, Seeds, Flour and “ Feed, Hard and Soft Coal, Farming Implements, &a.

“ Lewiston, Ff. Y., Deo. 30, 1896.

“ E. and F. Glor,

“Buffalo, FT. Y.:

“ Gentlemen.— Yours of the 28th to hand. We bought from and settled with Mr. Carney for all the apple barrels we used this season.

“ Yours truly,

“ J. H. KELLY.”

This is the only lettei or statement made by James H. Kelly in his lifetime, so far as is disclosed by the evidence, which, it is claimed in any manner, indicates that he had settled or paid for the barrels. He died on July 22, 1897, and the defendant James W. H. Kelly was appointed administrator of the estate.

On December 31, 1896, the plaintiffs wrote to their agent, Carney, as follows:

“ Buffalo, FT. Y., Deo. 31, 1896.

“ E. H. Carney, Esq.,

“ Lewiston, FT. Y.:

“ Dear Sir.— We just received a letter from J. H. Kelly, saying he bought from and settled with you for all the apple barrels he used this season, and we hope to receive remittance from you for his account by return mail. * * *

“ Yours truly,

“ E. & F. GLOE.”

On February 28, 1897, Carney wrote to the plaintiffs in answer to the letter .of December 31, 1896, as follows :

“ * * * The difference between you and Kelly and I is that, you must look to me for your pay. I have money coming to me in March, and I will settle with you the minute I get it. * * * ”

In answer to that letter the plaintiffs wrote to Carney under date, of March 1, 1897, as follows :

“ * * * Flote what you say regarding Kelly’s account. That will be satisfactory to us. Hope you will settle up this account as soon as you receive money due you, which, we trust, will be. soon. * * * ”

Thereafter, and upon several occasions before Carney’s death, which occurred before the commencement of this action, the plaintiffs demanded payment of Carney of Kelly’s account. The letters above referred to contain all the evidence upon which the defense of payment in this action is or can be based, and it may be summarized as follows : James H. Kelly, the purchaser of the barrels, stated to the plaintiffs that he had settled with E. H. Carney, their agent, for the barrels which he had purchased. That statement was communicated by the plaintiffs to their agent, Carney. He admitted that it was true, and told the plaintiffs that he would remit the money for the barrels within a month. The plaintiffs made reply to their agent, Carney, that that would be satisfactory to them. The money was not paid by their agent as he agreed, and they repeatedly asked that he should make good his promise to pay Kelly’s debt. This he never did, and the action was brought.

An examination of the correspondence shows that Kelly did not say he had paid plaintiffs’ agent for the barrels; he simply stated that he had settled with Oarney. The plaintiffs did not say to their agent, “ we are informed by Kelly that he paid you for the barrels ; ” but “ we are informed that he (Kelly) settled with you for the barrels.” Carney nowhere states that Kelly had paid him for the barrels, but states that he and Kelly had made a settlement, the terms of which are not disclosed by the evidence.

The plaintiffs were undoubtedly willing that Carney should carry out the terms of the settlement with Kelly, if it should result in the payment of their claim. Their only desire was to obtain their money for the barrels, and when Carney wrote them that he had made a settlement with Kelly (without disclosing its nature) and that he would send the remittance for the barrels within a month, the plaintiffs said that would be satisfactory,.and there could be no reason why it would not be. It was entirely immaterial to the plaintiffs who paid for the barrels, whether it was Kelly or Carney. Carney did'not do as he agreed, and the plaintiffs repeatedly reminded him of his promise and urged him to fulfill it, which he failed to do.

To establish the defense of payment the burden of proof was upon the defendant, and we think he wholly failed to make sufficient proof to meet that burden. It undoubtedly is sufficient to establish payment or an adjustment of th.e account as between Kelly ■and Carney, but we fail to discover how such an adjustment could bind the plaintiffs. It might have such an effect if Kelly did not know before the alleged settlement that the barrels belonged to the plaintiffs, and that Carney was acting as their agent in selling them, but such knowledge is clearly shown by the evidence of Mr. Shaw, who was running the shop for the plaintiffs, and who was called as a witness by them. He says that he saw J. H. Kelly nearly every day -when the barrels were being manufactured and delivered; that during that time he ordered some coal from J. H. Kelly, who was dealing in that commodity, and he says the bill for the coal was made out to the plaintiffs, E. & F. Glor; that it was credited to Kelly upon the books of the plaintiffs, and is the item of credit of seven dollars and sixty-nine cents which appears upon the bill of items. It also appears by the evidence of this witness that Mr. James W. II. Kelly, who was the agent of his father, James H. Kelly, knew the relation which Carney sustained to the plaintiffs; and we think, upon the evidence, the jury would have been justified in finding his knowledge was the knowledge of his father, James II. Kelly.

The evidence at least was sufficient to warrant the jury in finding that J. H. Kelly knew that the barrels which he purchased belonged to the plaintiffs, and that Carney in selling to him was acting as their agent. That being so, the fact that J. H. Kelly had made a .settlement with Carney by which, as between themselves, Carney ■agreed to pay for the barrels, in no way satisfied the claim of the plaintiffs against Kelly. Kelly, as appears, was a dealer in grain, seeds, flour and feed, hard and soft coal, farming implements, etc. If Carney had purchased any of those articles amounting in value to the price of the barrels, for his own use, to the knowledge of Kelly, and had turned out the barrels in payment therefor, and agreed to make payment to the plaintiffs, the statement contained in the letter of Kelly to the plaintiffs would have been true; the statement contained in the letter of the plaintiffs’ agent, Carney, would have been true, and yet it would not be claimed that such a transaction would have discharged Kelly’s obligation to the plaintiffs.

If J. H. Kelly had held a promissory note of Carney for $332.10,. and Carney had delivered to him the barrels in question in payment thereof, the statement contained in Kelly’s letter and in Carney’s letters, to wit, that Kelly had settled with Carney for the barrels, would all have been true, but such transaction would not satisfy the claim of the plaintiffs against Kelly.

There is no evidence tending to show that the plaintiffs, with knowledge of the nature of the settlement that was made, or of the exact transaction between Kelly and Carney, Accepted Carney as payor instead of Kelly. The only information the plaintiffs had was that a settlement had been made, and that information was accompanied by the statement on the part of Carney that he would pay for the barrels within a month, which the plaintiffs declared in their letter would be satisfactory. Carney did not pay within a month; did not pay after repeated demands, and then this action was brought to collect from the purchaser, James H. Kelly, the purchase price of the barrels. If the evidence showed that J. H. Kelly had paid for the barrels, it would end this action. If the evidence showed that with knowledge of the nature of the settlement the plaintiffs had accepted Carney as payor in the place of J. H. Kelly, the plaintiffs would not be entitled to recover, but the evidence totally fails to establish either of those propositions. At the most it only tends to prove that some sort of settlement had been made between Kelly and Carney, by which, as between themselves, Carney agreed to pay the plaintiffs for the barrels, the nature or character of which settlement never came to the knowledge of the plaintiffs. Such a transaction, under the' circumstances, did not discharge James. H. Kelly’s obligation to the plaintiffs.

We think the judgment should be reversed and a new trial .ordered, with costs to the appellant to abide event.