ANTRIM LBR. CO. v. SNELL

ANTRIM LBR. CO. v. SNELL
1934 OK 460
36 P.2d 920
169 Okla. 314
Case Number: 22891
Decided: 09/25/1934
Supreme Court of Oklahoma

ANTRIM LBR. CO.
v.
SNELL et al.

Syllabus

¶0 1. Appeal and Error--Trial--Evidence--Exhibits Admissible Upon Issue in Cause Though Incompetent Upon Another Issue--Oral Evidence Prima Facie Competent Though Insufficient to Support Issue--Objections to Evidence to Be Urged by Motion to Strike or Request for Instruction on Applicability of Evidence.
It is not error for a trial court to receive in evidence an exhibit which is competent and material upon an issue in the cause, although such exhibit contains matter which is incompetent upon another issue, the remedy being a request for an instruction limiting the purpose for which such exhibit may be considered. Nor it is error to overrule objections to oral evidence which is prima facie competent and material upon a given issue, although it proves insufficient to support such issue. The opposing party may move the court to strike out the evidence or request an instruction that the evidence is insufficient to accomplish its purpose, and in such case, where no such motion or request is made, the party cannot complain in this court that the jury was "undoubtedly" or "probably" misled.
2. Trial--Payment--Application of Payment--Instruction Held not Misleading.
Where one issue is whether a debtor made a certain payment and at the time directed its application upon the account sued upon, it is not error for the court to instruct, in substance, that if the jury finds that defendant, at the time of payment, instructed its application to the account in suit, then plaintiff cannot recover the amount of such payment in the pending action, but unless they do so find then their verdict should be for plaintiff for the amount they found due, if any. Such instruction is not subject to the objection that it misleads the jury into assuming that the only issue is the application of such payment.
3. New Trial--Overruling Plaintiff's Motion for New Trial Held not Error.
Record examined, and held, that the trial court committed no error in overruling plaintiff's motion for new trial.
Trial was had before court and jury, with verdict for defendants.

Appeal from District Court, Washita County: E. L. Mitchell, Judge.

Action by Antrim Lumber Company against H. D. Snell, H. Dykes, and E. B. Dugger, to recover alleged balance due from Dykes ag contractor with Snell for building construction and to impose such balance as a lien against Snell's property. Dugger made defendant to determine any interest he may have in property so that title may be settled in foreclosure of the lien. Judgment for defendants, and plaintiff appeals. Affirmed.

The petition of Antrim Lumber Company, plaintiff in this cause, states, in substance, omitting formal allegations, that defendant Dykes entered into a contract with defendant Snell to erect a certain building on the premises of the said Snell, and that the plaintiff, as a subcontractor, entered into a contract with defendant Dykes whereby plaintiff was to furnish and did furnish material to Dykes for the erection of said building; that a true and correct itemized statement of account was attached to the petition and a mechanic's lien statement in due time filed in the office of the court clerk of Washita county, a copy of the statement of account being attached to the petition. The building was completed on or about May 29, 1929, on which date plaintiff furnished the last materials; that Dykes had paid on said account, which amounted to $ 3,448.20, the sum of $ 2,425.30, leaving a balance due and owing to plaintiff in the sum of $ 1,022.90, with interest at the rate of six per cent. per annum; that notice of the filing of the lien statement was duly given to the owner of the property; that defendant Dugger claimed some right to the property, the nature of which is unknown to plaintiff, but which plaintiff alleges is inferior to Its right for lien and foreclosure thereof. Judgment is asked for $ 1,022.90, with interest as aforesaid, for costs of suit, and for attorneys' fees for foreclosure of subcontractor's lien. Defendant Dykes answered, admitting that he was the contractor with Snell for the construction of the building, and admits the price to be paid by Snell for the building was $ 6,487, and further admitting that Snell had paid him in full the contract price, and defendant further states:

"That there is not due the plaintiff herein any amount of money for material or labor furnished by the plaintiff under his contract with said H. D. Snell, and the plaintiff's account sued upon is incorrect and that the said plaintiff is not entitled to any judgment against this answering defendant or to any lien upon the property of the defendant H. D. Snell."

H. D. Snell, in his separate answer, denied each and every material allegation of plaintiff's petition, except such as were specifically admitted. He then admits his ownership of the property, and that he employed Dykes to erect a building on the premises described in plaintiff's petition, and that he agreed to pay Dykes therefor the sum of $ 6,487.

He then alleges that he paid the said Dykes the full amount of the contract price, and that the agent of the plaintiff asked him if he had settled in full with Dykes, and stated that Dykes was indebted to plaintiff in a small amount, which he gave as his reason for inquiring if he, Snell, had made full settlement with Dykes; and then requested defendant Snell to make final settlement with Dykes as soon as possible; and that thereafter, and when Dykes had completed the building, he, Snell, gave him a check for $ 422, which had written on the face thereof, "Payment in full on contract on warehouse"; and that this check was indorsed by Dykes to the plaintiff, and plaintiff accepted the same with full knowledge of the fact that defendant had settled in full with Dykes, and that the check had been given to Dykes as requested by plaintiff in order that the said plaintiff could make settlement with Dykes, and that he. Snell, would not have given him the check unless plaintiff's agent had made the representations and requests aforesaid; and that the action of said plaintiff's agent was an inducement to and authorization for this defendant to pay said sum of $ 422 to the said Dykes, which he, Snell, did to his prejudice; that plaintiff is concluded by said statements and by acceptance of said sum of $ 422 and is now estopped to assert any claim against the said Dykes as a basis of a lien against his, Snell's, property.

Further answering:

"This defendant specifically denies that there is due plaintiff from said defendant Dykes or from this defendant any amount of money by reason of material or labor furnished to the said H. Dykes or to this defendant on the said building, and that the full amount due the plaintiff for any and all material and labor furnished for said building has been fully paid."

To this separate answer of Snell, plaintiff replied by general denial, and specifically denying that the acceptance by it of the check of defendant Snell given to defendant Dykes for $ 422 was in full settlement of plaintiff's account, and also denied that it authorized Snell to settle for said sum or any other sum, and denied the correctness of the indorsement on said check. "Payment in full on contract on warehouse," and denied that plaintiff accepted said check with knowledge that Snell had made settlement in full with Dykes by payment of said sum of $ 422 by said check.

McKeever, Elam, Stewart & McKeever, for plaintiff in error.
Massingale, Duff & Bailey, for defendants in error.

PER CURIAM.

¶1 At the opening of the trial, counsel for the parties stipulated in open court the existence of the plaintiff as a corporation, and that it was authorized to do business in the state of Oklahoma; and that exhibit I attached to the petition is a correct copy of the lien statement filed in the office of the court clerk, and that notice of the filing of said lien statement was served upon Snell, as alleged in the petition; and that Snell was at all times owner of the property upon which foreclosure was desired; and that Snell had entered into a contract with Dykes by terms of which Dykes was to furnish labor and material for the agreed price of $ 6,487; and that the itemized statement of the account sued on by plaintiff is a correct statement of the items of merchandise sold by plaintiff to Dykes for the construction of the building; and that the dates thereon shown are correct.

¶2 This left the only issue in the case the question of payment as set out by Snell in his answer, and perhaps inferentially pleaded by defendant Dykes. At least, we shall take and treat that as the only issue, as it was treated by court and counsel at the trial. Notwithstanding the situation and condition of the record, plaintiff assumed the burden of the issues and introduced evidence to prove the correctness of the account as shown by the lien statement, which, it will be remembered, showed an indebtedness of $ 3,448.20, with credits of $ 3.30 and $ 422, this last by check of June 21, 1929. The evidence upon this subject, however, was directed to the correctness of the lien statement showing the debits and credits as above set forth. There was also a credit shown on this lien statement, January 18. 1929, of an item of $ 2,000.

¶3 Much of the evidence in the case is directed to the time when this credit was given and why the entry was not made at the time the payment was made, but, as we view the record, after a careful examination, the defendants claim credit for the $ 2,000; and the plaintiff conceded that the item should be credited, so that the evidence with reference to the item was not more than formally material, for the defendant had the burden of proving payment under the pleadings, and plaintiff gave credit for this item and proved by its bookkeeper that the item was correct and correctly credited. And what we say with reference to this item is also true of the item of credit for $ 422.

¶4 The real crux of the case was the contention of defendants that Dykes had made a payment of $ 1,000 for which no credit appeared on the lien statement, and the evidence upon this question was conflicting and such that neither the court below nor this court would be justified in interfering with the verdict of the jury.

1. The first contention of plaintiff in error is that the court erred in receiving in evidence the cheek for $ 422 given by Snell to Dykes, and which Dykes indorsed and turned in to plaintiff, and for which plaintiff had given credit, said check bearing the indorsement, "Payment in full on contract on warehouse."

¶5 There was evidence that the check did not contain such indorsement at the time it was received by the plaintiff, and there is much evidence that it did contain such indorsement, but whether it did contain such indorsement or not is immaterial, for plaintiff's reply had put in issue the entire matter of payment of the account, and defendants had a right to prove that payment by any competent evidence, and this check was competent for that purpose. It was not sufficient to accomplish the purpose of showing that plaintiff received it in full satisfaction of its claim, but if plaintiff desired to limit the force of the instrument as evidence of any fact, it could easily have accomplished that result by requesting the court to so instruct the jury.

¶6 Plaintiff complains that the jury was misled by the check into deciding that defendant Dykes had paid plaintiff, Antrim Lumber Company, in full. This court cannot surmise nor conjecture as to a Jury being misled, and as to its having been influenced, into making a mistake, nor was it the province of the court below to make such conjecture, but if evidence is competent, relevant, and material, when proffered by a party, the remedy of the opposing party is a request to the court to limit the purposes for which the evidence can be considered, and, in the absence of such request, the jury is not subject to having its decision inquired into on conjecture or supposition. Much evidence was introduced with reference to this check for $ 422, but as it was competent in proof under the pleadings, which left the burden upon defendants to prove payment of the entire amount, it would have been error to have excluded it.

¶7 As to some of the evidence concerning conversations between Snell and the plaintiff's representative, in which, however, Snell failed to testify to anything prejudicial to plaintiff, and evidently failed to testify to such facts as would constitute an estoppel of plaintiff in requesting Snell to settle with Dykes, if plaintiff had fears that the jury would be misled into believing that it was estopped to claim against Snell by reason of having asked Snell to settle with Dykes, then it should have asked that the evidence of such requests be stricken out as being insufficient to prove an estoppel, or should have requested an instruction to the jury that the facts in evidence would not constitute an estoppel. Prima facie, the evidence elicited was competent and material if properly supplemented to establish that fact, though insufficient for that purpose, and the objections to its introduction were properly overruled.

2. Plaintiff in error contends that the court erred in refusing to permit its witness to testify concerning the entry of a $ 2,000 credit, and in striking out certain evidence given with reference thereto. The defendants claimed the $ 2,000 credit, and the plaintiff gave the $ 2,000 credit, and the evidence offered went only to the effect that the $ 2,000 item had been erroneously originally credited to another account with the defendant Dykes, but that upon examination it was found that it should be entered upon this account of Snell and Dykes, and it was so entered. There was, therefore, no contest in fact between the parties that the entry and credit was a proper one on this account. The rejection of this evidence, therefore, although rejected for an improper reason, was not prejudicial to plaintiff.

¶8 We say the evidence was rejected for an improper reason because the evidence offered was for the purpose of explaining the $ 2,000 entry, and the objection was "that the books are the best evidence." The books of account of a party are the best evidence only when the question is, "What do the books contain?" They are not the best evidence as to any transaction inter partes whether shown by the books or not, and either party may explain, contradict, or supplement the account as shown by the books by oral or other competent evidence. Keene v. Meade, 28 U.S. 1, 3 Pet. 1, 7 L. Ed. 581; Cowdery v. McChesney, 124 Cal. 363, 57 P. 221; Christman v. Pearson, 100 Iowa 634, 69 N.W. 1055.

3. The plaintiff also complains of error in the court in giving an instruction with reference to the item of $ 1,000 claimed to have been paid to plaintiff and evidenced by a check for that amount. The court instructed the jury that it was the duty of the plaintiff to apply said amount as directed by Dykes, and that if they found that Dykes had directed the application of that check to this account, then plaintiff could not recover said amount against defendants in this action. There is no error in this instruction, which added that unless the jury found that Dykes had instructed plaintiff to apply the amount of the check to the Snell account, then it would be the duty of the jury to return a "verdict for the plaintiff and against the defendant for such sums as you find from the evidence is due the plaintiff, if any."

¶9 Plaintiff says that instruction gave the jury reason to believe that the amount in controversy was only $ 1,000, but we do not find any such meaning in the instruction.

4. Plaintiff complains of error in overruling its motion for a new trial. Under this heading the plaintiff, to support its contention, cites and refers this court to 49 different pages of the record, without specifying or setting out in any manner in what way these pages support its contention, and without setting out any of the substance of the evidence on those pages. This is by no means fair to this court; and we do not hesitate to say that it is a duty of a party to set out in its brief at least the substance of the evidence which it claims supports its contention. Nevertheless, we have examined the entire record, and we are unable to find anything in the evidence to support its contention, or to formulate any theory upon which this court would be Justified in reversing this cause.

¶10 As to the proposition suggested by plaintiff in error that the defendants only showed by their testimony the payment of this $ 1,000 by cheek, for which credit had not been given upon the lien statement, and that therefore there was at least a balance of $ 22.90, we have only to say that there appears in the case-made a photostatic copy of page 280 of plaintiff's ledger, which shows a debit of $ 3,448.20, with credits of $ 3.30, $ 422, $ 2,000, and $ 1,023.65, making a total of $ 3,448.95, which amount is more than the debit, and therefore there is evidence that the entire amount, including the $ 22.90, has been paid, and the jury so found.

¶11 Not finding any error in the record, the judgment of the trial court is affirmed.