Hyatt Coal Co. v. Apperson

1. SETTLEMENT: Payment: Evidence. On the evidence a certain adjustment and payment is held to be a payment on account and not a settlement of the account. 2. APPELLATE PRACTICE: Instruction: Evidence. Where the instructions submit the case and the evidence supports the verdict, the appellate court will not interfere.

Appeal from the Buchanan Circuit Court. — Eon. Henry M. Ramey, Judge. (1) The verdict was not sustained by any substantial evidence. Wilson v. Russler, 91 Mo. App. 275. There would be no more consideration for such an agreement than if a party to whom a sum of money was due agreed with the debtor to accept a less amount in full .payment of the debt. Willis v. Gammill, 67 M'o. 730. (2) There is no reasonable presumption that because the coal weighed a certain amount when the cars were unloaded by respondent that it did not weigh more when it was delivered to respondent in the terminal yards at St. Joseph, Missouri. Jarvis v. Vanderford, 116 N. C. 147; Martin v. Curtis, 67 Vt. 263; Pagett v. Curtis, 15 La. Ann. 451; Coal Co. v. Bradwood, 72 111. 625; Waddingham v. Waddingham, 21 Mo. App. 209; Cargile v. Wood, 63 Mo. 501; Diel v. Stegner, 56 Mo. App. 535. (3) The court submitted this cause to the jury notwithstanding that the parties on the 27th day of April, 1904, had a general settlement of accounts and at that time respondent paid in full for all coal he had purchased from appellant prior to that date and at the time of settlement made no claim or demand for shortage. (1) On the first point, respondent testified that he bought the coal by actual weight; that he weighed all the coal he bought, and when he found a car that ran short of its supposed weight, he notified appellant’s officer, Mr. Hyatt, who told him the shortage would be made up. Appellant’s witnesses did not testify that the coal was sold mine weights. But if they had done so, the jury had the right to disbelieve them, and to believe respondent’s witnesses. (2) Point 2 of appellant’s brief is not pertinent. (3) Point 3 is addressed to the alleged compromise. This is another question of fact. The instruction leaves the issue to the jury and the verdict settles it. If it was error appellant invited it and cannot complain.