United States Gypsum Co. v. Snyder-Ashe Co.

YORK, J. This is an appeal from a judgment recovered by plaintiff in an action brought against the defendant cor[732]poration upon an open book account for materials furnished by plaintiff to the defendant, the unpaid balance of which was found by the court to be $3,603.32. 'The complaint alleged a second cause of action upon an account stated dated on or about July 29, 1929, by the terms of which it was found that defendant was indebted to plaintiff in the sum set out in the first count. Tbe third cause of action alleged a common count for materials sold and delivered, and the fourth, fifth and sixth causes of action set up three trade acceptances, and in addition, the complaint attempted to join an action for stockholders ’ liability.

The answer denied all the allegations of the complaint and alleged that the obligation was extinguished by an agreement under the terms of which the defendant corporation agreed to pay to plaintiff the sum of $2,000 on July 15, 1929, and agreed to and did give to the plaintiff its promissory notes extending over a period of six months for the balance due to the plaintiff. It was found by the court that the defendant corporation never made the $2,000 cash payment, but “that some time subsequent to July 15, 1929, and prior to July 30, 1929, said defendant delivered to plaintiff six promissory notes in the total amount of eight thousand six hundred three and 32/100 dollars ($8,603.32) 'and that these notes were not accepted by plaintiff, and were, on July 29, 1929, deposited by plaintiff in its outgoing mail in an envelope addressed to the said defendant. That plaintiff did not, on July 11, 1929, or at any other time, or at all, offer or agree to accept said or any promissory notes of the said defendant, or any notes whatever, except upon the condition that a cash payment of two thousand dollars ($2,000.00) be made by defendant Snyder-Ashe Company, Inc., on or before July 15, 1929.”

Upon this appeal appellant contends that the evidence is insufficient to sustain the decision of the court or the judgment, or to sustain or justify the findings of fact; that the complaint does not state facts sufficient to constitute a cause of action against the stockholders; that motion for nonsuit should have been granted; and finally, that the evidence is insufficient to sustain the findings of fact or the judgment as to the ownership of the shares of stock and as to any liability thereon.

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