183 Mo. App. 429 | Mo. Ct. App. | 1914
On the 22nd of July, 1911, plaintiff commenced its action against defendant, both parties corporations.
The petition is in three counts. The first count avers that on March 2,1908, defendant was indebted to plaintiff in the sum of $576.89, “for the money then found to be due by said defendant to plaintiff, and by them both agreed to, upon an account stated between them, which said sum the said defendant then and there promised to pay, but that said sum is still due and wholly unpaid.” Judgment is asked' for this with interest from March 2, 1908.
The second and third counts are on notes.
A general denial interposed, the cause was tried by the court, a jury being waived: Upon the conclusion of the trial the court gave a declaration of law to the effect “that an account stated is an account settled between the debtor and creditor therein, in which a sum of money or a balance is agreed on and an acknowledgment by one in favor of the other of a balance or sum certain to be due and an express or implied promise to pay the same by one to the other; and the plaintiff in this cause having sued and declared in the first count of its petition, not upon an itemized account, but upon an alleged account stated, the court cannot find for plaintiff herein on said count unless the plaintiff has by the greater weight of the evidence proven an account stated between plaintiff and defendant,” and the finding on this was for defendant.
The finding was for plaintiff on the other two counts, based upon the notes.
Both parties filed motions for a new trial. That of defendant was overruled; that of plaintiff was sustained by the court on the ninth ground stated in its motion. That ninth ground is to the effect that since the trial plaintiff has discovered new evidence con-, sisting of entries in the books of defendant, showing
This ninth assignment or ground concludes with the statement, “that all of said evidence has come to the knowledge of the plaintiff since the trial of this cause and it was not owing to want of due diligence that the said evidence did not come to its knowledge sooner.”
Among the other grounds for a new trial is the tenth, to the effect that plaintiff and its counsel were surprised by the testimony of John IT. Boogher, to the effect that the account had not been stated, “because the said Boogher had heretofore admitted to the plaintiff and its counsel that the said indebtedness was due and had led counsel to believe that he would not contest the case, as the defendant was insolvent and the only way plaintiff could recover was to pursue the said Boogher and the other stockholders for amounts due
Excepting to the action of the court in sustaining the motion, which it did solely on the ninth ground above, and in granting a new trial on that count, but holding the finding as to the other two counts in abeyance until the final determination of the cause, defendant has duly perfected its appeal to our court.
We have set out the tenth ground stated in the motion for new trial, namely, surprise, merely because the learned counsel for respondent argues that proposition before us in support of the action of the trial court. This question of surprise, however, has not been argued by counsel for appellant. As the action of the court on that ground is against respondent, and as its determination rests upon the weight given to the testimony of the respective parties in support of it, that is to say, turns entirely upon a question of fact, we feel concluded by the action of the trial court on that, and confine ourselves to a consideration of its action in sustaining a motion for a new trial on the ground of newly discovered evidence.
Beyond any question, concededly, the first count of the petition is onan“ account stated, ’ ’ in the technical, common law meaning of that term.
The learned trial judge, in the declaration of law which he gave, has very correctly stated the law applicable to actions on an account stated. In point of fact his declaration is practically a copy of an approved instruction as set out in Powell v. Pacific Railroad, 65 Mo. 658, l. c. 661, and which he cited. So all authority holds. Thus in a footnote under the title “Account,” subtitle, “Account Stated,” Black [Law Dictionary (2 Ed.), p. 17], says that an account stated is “the settlement of an account between the parties, with the balance struck in favor of one of them; an account rendered by the creditor, and by the debtor assented to as correct, either expressly, or by implication of
In 1 Am. & Eng. Ency. of Law (2 Ed.), p. 437, par. 8 and following, an account stated is defined as, “An agreement, between parties who have had previous transactions of a monetary character, that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. . . . An account must be stated between the person in whose favor the balance appears, or his duly authorized agent, and the person against whom the balance lies, or his duly authorized agent. . . . Admission to third persons not connected with the creditor do not constitute an account stated.” At page 453 of the same work, it is further said: “Admissions made to third parties may be evidence to the jury of a previous accounting then admitted to have taken place, if they are unequivocal as to a specific amount acknowledged to be due, although such admissions cannot in themselves constitute a statement of account.” Further, at page 454: “Where all the facts are undisputed, the question as to whether they constitute an account stated is for the court; but where there is conflicting evidence the question should be submitted to the jury.” We may add that entries of the account in the books of the debtor, do not, of themselves, constitute an “account stated. ’ ’
With these definitions in mind we come to the consideration of the action of the learned trial court in sustaining the motion for the new trial filed by plaintiff, on this ninth ground, which, as before remarked, and briefly, was by reason of newly discovered evidence. That must mean evidence which, by the use of proper diligence' and availing itself of data or facts
We have so recently gone over this matter of the essentials to the award of a new trial on the ground of newly discovered evidence in Stahlman v. United Railways Co., 183 Mo. App. 144, 166 S. W. 312, the opinion filed April 7, motion for rehearing overruled April 24, 1914, that we will not go into it here, but refer to that opinion on this point.
What is depended upon as newly discovered evidence in this case, as will be observed, relates to the execution of a certain deed of trust, to the action of the trustee under that deed of trust, and to the listing of this account in some former proceeding. As to this latter proposition, the identity of the account is not established, for according to the affidavits filed, the account listed was larger in amount than the one here involved; larger, it is true, by only a few dollars, but-sufficient to destroy the identity of the two accounts. The plaintiff here, according to the affidavits, knew all about these matters. The affidavit of the attorney shows that he has only been in charge of the business of this plaintiff since May, 1911. It will be noticed that in the petition the account stated is alleged to have accrued March 2, 1908. It appears, therefore, that the transactions connected with this account occurred long before this attorney could possibly know anything about it, and lack of knowledge, or lack of diligence cannot be charged against him. But when we consider the case of his client, a very different situation is presented. It appears by the affidavits in the case, from the testimony, for that matter, that this defendant company was in difficulties in January, 1907, at which time it executed a mortgage or deed of trust to the Mr.
Without passing upon the question as to whether these books and the recital in the deed of trust in which Taylor was the trustee would, with other evidence, prove an account stated, it is sufficient to say that all
It appears by the affidavit of the credit man of defendant that the original accounts showing the items which constitute the 'total in the so-called account stated, have been lost or destroyed. He sets out in his affidavit “that the same were kept in loose leaf sheets and are not retained by the plaintiff, but after a lapse of time are usually destroyed, and although he has made strict search for the same since the decision of this case, in order that an action may be brought agaiivst the defendant on an open account, if such an action could be maintained, but that he has been unable to find the said loose leaf sheets and unless a new trial is granted herein the plaintiff must entirely lose the sum sued for in the first count of its petition, and affiant believes that if the court will grant a new trial that on such retrial the new evidence hereinabove recited would result in a judgment for the plaintiff on the said first count of its petition.” (Italics ours).
According to this affidavit of the credit man, plaintiff might sustain an action on an open account, and it was evidently in the mind of that affiant that the action of plaintiff was to be on an open account; he does not pretend to stand on an account stated.
On the authorities referred to in Stahlman v. United Railways Co., supra, we are unable to conclude that plaintiff here has shown any proper diligence in preparing for the trial, has shown any reason why the evidence now sought to be produced and said to be in existence was not as accessible and easily ascertained and produced at this trial. Furthermore, as before stated, at best, it was cumulative,
These propositions are not" disputed. The only ground assigned by the trial court for setting aside the verdict is the ninth in the motion for new trial. The only other ground now urged as sustaining the action of the trial court, is that the verdict is against the weight of the evidence. This was one of the grounds set up in the motion for a new trial and was disallowed by the trial court in sustaining the motion on the one ground alone. To require us to hold that the action of the trial court can be sustained in granting a new trial on the ground of the weight of the evidence would require us, as an appellate court, to weigh that evidence. ‘That we cannot do.
While we pay great deference to the action of the trial court, in sustaining a motion for a new trial, the very fact that the law provides for an appeal from that action, is a sufficient answer to the contention made that we are concluded by that action. We are concluded by the finding of a jury, or of a court, in an action at law, and when he is the trier, on the facts, but not on the law nor the application of the law to the facts.
Motions for a new trial on the ground of newly discovered evidence are regarded with a jealous eye and construed with remarkable strictness by the courts. They should be tolerated, not encouraged; viewed with aversion, rather than favor; granted as an exception, and refused as a rule. [State v. McLaughlin, 27 Mo. 111; Cook v. St. Louis & Keokuk R. R. Co., supra; State v. Sansone, 116 Mo. 1, l. c. 15, 22 S. W. 617.]