J. R. WATKINS CO., INC. v. STRICKLAND

J. R. Watkins Company, Inc., filed suit against Harold A. Strickland, R. H. Horne, William R. Simpson, and Elmo Brown, the administrator of the estate of Matthew A. Brown. The suit was based on a contract between J. R. Watkins Company, Inc., and Harold A. Strickland, the principal and purchaser, and the other named parties, whom we shall designate as the sureties. It was a contract joint and several against all parties. The provision of the contract was to the effect that J. R. Watkins Company, Inc. (hereinafter called the plaintiff), was to sell to Strickland certain of its goods at a stipulated price, which goods Strickland was to sell or return. We will not go into detailed terms of the contract, for they are undisputed. It is alleged that the plaintiff fully complied with the terms of the contract. The suit was brought for an alleged balance due of $778.53, besides interest.

All parties filed their answers and verified the answers to their best knowledge and belief. The answer of William R. Simpson and Elmo Brown reads: "Now comes William R. Simpson and Elmo Brown, as administrator of the estate of Matthew A. Brown, deceased, defendants in the above styled matter, and subject to any pleas and demurrers heretofore filed, file this their answer to plaintiff's petition as follows:

"1. These defendants deny the allegations contained in paragraphs one (1), two (2), three (3), five (5), six (6), and nine (9) and demand strict proof thereof.

"2. These defendants deny so much of paragraph four (4) as follows: `leaving a balance of $778.53; which sum plaintiff claims of defendants individually and severally; said payments shown by attached statement marked exhibit B and made a part hereof.' and demand strict proof thereof. Due to the lack of sufficient information defendants neither admit nor deny the remainder of said paragraph, and demand strict proof thereof.

"3. These defendants admit the allegations of paragraphs seven (7) and eight (8). In further answer these defendants show that:

"4. Plaintiff has by its action and laches destroyed and impaired their rights as sureties for contribution among themselves and that as a result thereof, they, both severally and individually, have been injured and their risk increased by negligence on the part of plaintiff, and that as a result thereof each defendant is released from his obligation under said contract.

"5. Through the action, negligence and laches of plaintiff, defendants have been injured and their risk, severally, increased in that the right of each to contribution from their co-surety has been lost. As the result of said laches property of a co-surety is now beyond the reach of each of the other sureties, and such co-surety is deceased and his estate insolvent, said action releasing defendants as sureties under said contract.

"6. That plaintiff's right of action, if any, arose prior to the decease of one of the co-sureties and prior to the insolvency of such estate.

"Having fully answered, these defendants pray that they be hence discharged without cost of them, that all cost of these proceedings be taxed against plaintiff and of this defendants put themselves upon the country."

The answer of R. H. Horne reads: "Now comes R. H. Horne, defendant in the above styled matter, within forty-five (45) days subsequent to the service of plaintiff's petition and having paid all accrued cost in said case, and subject to any pleas and demurrers heretofore filed, files this his answer to plaintiff's petition as follows:

"1. This defendant denies the allegations contained in paragraphs one (1), two (2), three (3), five (5), six (6) and nine (9) and demand strict proof thereof.

"2. This defendant denies so much of paragraph four (4) as follows: `leaving a balance of $778.53; which sum plaintiff claims of defendants individually and severally; said payments shown by attached statement marked exhibit B and made a part hereof.' and demand strict proof thereof. Due to the lack of sufficient information defendants neither admit nor deny the remainder of said paragraph, and demand strict proof thereof.

"3. This defendant admits the allegations of paragraphs seven (7) and eight (8). In further answer this defendant shows that:

"4. Plaintiff has by its action and laches destroyed and impaired his right as surety for contribution among his fellow and joint sureties and as a result thereof he has been injured and his risk increased by negligence on the part of plaintiff, and that as a result thereof defendant is released from his obligation under said contract.

"5. Through the action, negligence and laches of plaintiff, defendant has been injured and his risk increased in that his right to contribution from his co-sureties has been lost. As the result of said laches property of a co-surety is now beyond the reach of each of the other sureties, and such co-surety is deceased and his estate insolvent, said action releasing defendant as surety under said contract.

"6. That plaintiff's right of action, if any, arose prior to the decease of one of the co-sureties and prior to the insolvency of such estate.

"Having fully answered, this defendant prays that he be hence discharged without cost on him, that all cost of these proceedings be taxed against plaintiff and of this defendant puts himself upon the country."

The answer of Harold A. Strickland reads:

"Now comes Harold Ardel Strickland, defendant in the above styled matter within forty-five (45) days subsequent to the service of plaintiff's petition and having paid all accrued cost in said case, and subject to any pleas and demurrers heretofore filed, files this his answer to plaintiff's petition as follows:

"1. This defendant denies the allegations contained in paragraphs one (1), two (2), three (3), five (5), six (6) and nine (9) and demands strict proof thereof.

"2. This defendant denies paragraph four (4) in the manner and form in which same is alleged and expressly denies the allegation that a balance of $778.53 is due from this defendant to plaintiff and demands strict proof thereof. Defendant further says that he is not indebted to plaintiff in the amount of $778.53 or any other amount and that said account has been paid in full by cash and the return of merchandise, either one or both.

"3. This defendant admits the allegations of paragraphs seven (7) and eight (8).

"Having fully answered, this defendant prays that he be hence discharged without cost on him, that all cost of these proceedings be taxed against plaintiff and of this defendant puts himself upon the country."

The case proceeded to trial and the jury returned a verdict for $200, besides interest, in favor of the plaintiff. The plaintiff filed a motion for a new trial. This motion was denied, the plaintiff alleging that the verdict for $200 was without evidence to support it, and that the verdict should have been for $778.53.

The evidence is substantially as follows: Harold A. Strickland, the principal and purchaser under this contract, was called by the plaintiff for cross-examination and testified: "I owe that sum . . . I lost all my records in moving . . . I do not know how much I owe them . . . I believe it was about $200.00." The plaintiff then introduced Ralph G. Boalt, who testified that he lived at Winona, Minnesota, and was vice-president of the J. R. Watkins Company, Inc., and had been since 1933; that his duties were the supervision of and making and accepting of contracts with customers, the sale of goods to customers, the keeping of books, the keeping of records of accounts, repurchase of merchandise from customers, and correspondence; that the plaintiff sold to Strickland under the contract certain merchandise; and that, after giving Strickland credit for all payments made and all merchandise returned under the contract, Strickland owed the plaintiff $778.53. The witness furnished in his deposition an itemized statement, copies of letters to Strickland, and copies of letters from Strickland regarding the balance the company claimed due it as above stated. The plaintiff rested.

Thereafter Strickland was called and testified as follows: "I do not know how much I owe them (plaintiff) — in moving I lost all of my records. I think I owe them about $200.00 — I don't know exactly. Cross-examination: `I received (that) letter (plaintiff's exhibit 43) demanding payment of $778.53, balance owing them. (on being shown plaintiff's exhibit 2) I guess I signed that letter. I did not deny that I owed (plaintiff) $778.53 and promised to pay them —. I sold merchandise on credit — I still have about $200.00 owing me — I think I owe them (plaintiff) about $200.00 — I do not know exactly — I (also) lost the records of accounts due me. So far I know I received credit for all payments made and all merchandise returned. I account for the difference, because the people I sold to owe me about that much. My customers owe me about $200.00. I received numerous letters from Watkins (plaintiff) saying I owed them $778.53. I did not write them denying that I owed that amount, I promised to pay them without denying the amount stated in their letters. I promised to pay on several occasions."

After the verdict counsel for both parties stipulated and agreed as follows: "For plaintiff: (1) Original complaint filed 25 October, 1954; and (2) the amendment thereto filed 20 December, 1954; (3) ten days notice of intent to examine witnesses without commission with service thereon, filed 27 December, 1954; (4) motion for new trial, filed November 10, 1955; and (5) motion for continuance, with agreement of defendants' counsel and filed on January 21, 1956; (6) Motion for new trial, filed November 10, 1955; and (7) motion for continuance, hearing on motion for new trial, consent of defendants' counsel and order of judge thereon, filed January 21, 1956.

"For defendants: (8) The answer of defendants, William R. Simpson and Elmo Brown as administrator of the estate of Matthew A. Brown, deceased, filed 27 September, 1954; (9) the answer of defendant, R. H. Horne, filed 5 October, 1954; and (10) the answer of defendant, Harold A. Strickland, filed 5 October, 1954.

"It is further agreed that all pleadings filed in captioned cause, other than the above listed, be and they are hereby stricken, so as not to encumber the record in said cause; and

"That said cause proceed, as to motion for new trial and any proceedings subsequent thereto on the above listed pleadings only."

GARDNER, P. J.

This record does not sustain the verdict of $200. Strickland, the only witness for the defense who attempted to establish the amount owed the plaintiff, stated positively in his testimony that he did not know how much he owed the plaintiff; that he lost his records in moving; that he believed it was about $200. The evidence of the plaintiff showed in detail the status of the account, and that amount was $778.53. The plaintiff carried the burden of proving this amount and was entitled to a verdict, according to this record. A verdict which is not supported by any evidence is an unlawful verdict and cannot be permitted to stand. There is no evidence to sustain the contentions of the sureties in their several pleas.

Judgment reversed. Townsend and Carlisle, JJ., concur.