150 Mo. App. 213 | Mo. Ct. App. | 1910
This action was commenced before a justice of the peace by the plaintiff, respondent here, against the defendants, as co-partners, the statement filed before the justice setting out that plaintiff had been employed by the defendants to do certain work of grading, building and constructing the Yalewood levee in Issequena county, Mississippi; that on the 12th day
There was evidence tending to prove that the plaintiff did the work under a contract as stated, down to a certain time, when he abandoned it, as plaintiff claims, justified in the abandonment by the refusal of the defendants to clear out a certain borrow pit, and there was evidence on the part of the defendants tending to show that in consequence of failure of plaintiff to comply with the contract and to do all work necessary to be done, they had done work in. completing the grading'. An itemized account of this is set up in the counterclaim, showing a balance due defendants of $68.41, as claimed. That is to say, each party to the action introduced evidence tending to support their respective claims. It is sufficient to say of that evidence, that it
In addition to the evidence as abstracted above, in the statement of counsel for appellants, defendants below, it was in evidence that when plaintiff stopped work he made a demand for a settlement and a statement of his accounts; went to the general office of the defendants, to Mr. Baker, the man with whom he had done all of his business and from whom he had received all his statements, some eight or nine, and he gave him a statement which is the one plaintiff produced and identified. This statement is in the abstract and is dated May 12, 1905, headed, “Mt. I. E. Alexander, in account with
The assignments of error are in the refusal of the court to sustain a demurrer to the evidence interposed by defendants, defendants claiming that there was no evidence that an account had been stated; that the account given plaintiff by Baker did not constitute a stated account; that defendants’ instruction as to the agency of Baker, refused by the court, should have been given, as Baker had no authority to state an account between plaintiff and defendants; that the instruction given by the court of its own motion and the first and second and third instructions given at the request of plaintiff were erroneous, in that the instruction given
It is, of course, to be assumed that when the court acted on the demurrer which the defendants asked, to the effect that there was no evidence of an accounting and settlement between plaintiff and defendant, it acted entirely upon the testimony of the plaintiff as if that was uncontradicted, for by interposing the demurrer, the defendants admit not only all of the testimony of plaintiff on the proposition, but every conclusion which can be properly drawn from that testimony. So that as far as that point is concerned, the demurrer or instruction was properly overruled or refused. There was testimony from which the jury had a right to assume that an account had been stated and agreed to between plaintiff and Baker. As before noted, the action is not on this paper, but the action is as on an account stated, and the paper was competent evidence along with the other evidence in the case, tending to prove the fact of an ac
The question then recurs as to whether there is evidence in the case tending to show authority in Baker to render or agree upon an account, so as to hold defendants to it as on an account stated. We are referred to two case by counsel for the respondent in support of the proposition that the respective bookkeepers of the debtor and creditor may state an account binding upon the employers as a stated account and that the clerk of the creditors may state an account with the debtor. [Rice v. Schloss & Kahn, 90 Ala, 416; Chisman v. Count, 2 Manning and Granger, 307 (385).] But while not aware of any decisions in our own state which illustrate the point as these two cases do, in that they
A very careful examination of the instructions given at the instance of plaintiff and of the defendants satisfies us that the court properly placed the case before the jury and committed no error in the giving of the instructions which are complained of. Strenuous complaint is
On the counterclaim of the defendants, the court, at the instance of plaintiff, told the jury that if they found that before plaintiff’s contract was completed, a borrow pit involved, without fault of plaintiff and because of heavy rains, overflowed so the dirt could no