Meyer v. Henry Cowell Lime & Cement Co.

HALL, J.

This is an appeal from a judgment in favor of plaintiffs and from an order denying defendant’s motion for a new trial.

Plaintiffs sold defendant a cargo of cement, at the agreed price of $2.90 per barrel,.payable on delivery, which was completed November 18, 1907. The amount payable under the contract, which was in writing, on that date, was $70,064.07. Upon account of the condition of the money market, defendant was unable to make payment in money, but did arrange with plaintiffs to procure for them a New York draft for fifty thousand dollars. Plaintiffs took the draft and discounted the same at a loss of two hundred and fifty dollars, and credited defendant with the net proceeds of such draft $49,750, and at once so notified defendant. There is a sharp conflict in the testimony as to whether or not plaintiffs had agreed to accept such o draft on account at its face or at its discount value. But it is certain that thereafter a controversy existed between plaintiffs and defendant as to who should bear the loss of the discount. The evidence shows that plaintiffs made frequent demands upon defendant to pay the balance unpaid. Upon February 3, 1908, defendant sent to plaintiffs a state

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ment, in which defendant charged itself with the $70,064.07, as the amount for the cargo of cement, and credited itself with the face of the draft fifty thousand dollars. The account contained some other dehits and credits, not in any way disputed, and showed a balance in favor of plaintiffs in the sum of $19,537.37, for which amount defendant, with the statement, sent its cheek payable to plaintiffs. Plaintiffs took the check, gave a receipt for the amount thereof, and upon the same day sent to defendant a statement of account showing a balance in favor of plaintiffs in the net sum of $610.20, after giving credit for the check of $19,537.37. This balance was made up of the two hundred and fifty dollars discount above referred to, and interest at the legal rate upon the unpaid balance upon the cargo of cement. This statement was accompanied by a letter calling attention to the claim of plaintiff for the two hundred and fifty dollars paid as discount on the draft, and the claim and charge of plaintiffs for interest on the overdue balance unpaid upon the cargo of cement.

As shown by the statement sent by plaintiffs to defendant, the two hundred and fifty dollars and the interest on the unpaid balance amounted to $610.20, for which suit was brought and judgment obtained.