Rabbitt v. Carthage Marble Corp.

ROTH, J.,

pro tem.

This action is brought by trustee in bankruptcy of the bankrupt estate of Inter-Mountain Marble Company, a corporation, which corporation for convenience will be referred to as “California corporation”, to recover from defendant Carthage Marble Company of Missouri a balance of $2,250.21, with interest from August 28, 1931. California corporation had judgment and defendant appeals from same.

On or about December 7, 1929, California corporation entered into a written contract with defendant to do and perform certain work and services, for which defendant promised to pay to California corporation a sum in excess of $70,000. During the performance of the contract various amounts were paid by defendant to California corporation from time to time, and on July 17, 1931, there was a balance due from defendant to 'California corporation on account of said contract in the sum of $13,615.33 which defendant acknowledged. At the same time there was owing to defendant from a separate Utah corporation which had a name identical to that of the California corporation, the sum of $2,250.21. One Herbert A. Welch was at said time and had been for some time prior thereto, the president of the California corporation and the president of the Utah corporation. On the date mentioned, defendant requested Welch’s permission to deduct $2,250.21, which the Utah corporation owed to defendant, from the $13,615.33 which the defendant admitted it owed to the California corporation. Defendant predicates its assertion that Welch agreed with the California corporation that this deduction should be made, upon a letter sent and signed by Welch dated August 5, 1931. This letter appears to be on the stationery of the Utah corporation. It was in fact mailed on that date from Salt Lake City, Utah. In order to narrow the issues at the trial, counsel entered into a written stipulation which provided in part as follows:

“ (6) That the issues to be determined in this ease are:

“(a) Plaintiff claims that the Carthage Marble Company never paid it in full, and that $2250.21 is yet due them on the contract, as Welch had no authority to make an agreement, if he did, with the Carthage Marble Company to deduct the

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$2250.21 from the amount it owed to the Inter-Mountain Marble Company of California, in settlement of the debt due the Carthage Marble Company by the Inter-Mountain, Marble Company of Utah.