111 Mo. App. 61 | Mo. Ct. App. | 1905
— We adopt the following statement of the case made by respondents which, with a single exception, contains every fact necessary for our consideration:
‘ ‘ This suit was brought by Julia Allen, the plaintiff, in a justice of the peace’s court where there was a trial and judgment for defendants, and the case appealed by the plaintiff to the circuit court. There was no statement or other pleading filed in the justice court except the itemized account. The account is made out on a printed letterhead, which reads: ‘ Sedalia Elevator, W. M. Harbaugh, Manager,’ together with some other advertisement of the business and covers about eighteen pages. Printed at the head of each page is ‘ Sedalia Elevator, W. M. Harbaugh, Manager.’ At the top of the account is written,‘Laura and Gertrude Goodrich, to W. M. Harbaugh, Mgr. for Julia Alleh, owner of Sedalia Elevator.’ Then follows the itemized account on the first page. On each of the pages the ac*64 count begins, ‘Lanra and Gertrude Goodrich, to W. M. Harbaugh, Dr.’ The plaintiff, Julia Allen, not being mentioned.
“When the case was called for trial in the circuit court, Mr. G. W. Barnett, one of the attorneys for appellant, made an opening statement to the jury, which statement begins on page two of the bill of exceptions, and in his statement said: ‘This is a suit by Julia Allen, doing business under the firm name of Sedalia Elevator Co., v. Laura Goodrich and Gertrude Goodrich.’ It seems that Mr. Harbaugh was manager for Mrs. Allen in conducting this business, the Sedalia Elevator Co. Mrs. Allen was the owner.
“After counsel had made his opening statement to the jury W. M. Harbaugh was placed upon the witness stand and testified in part, as follows: Q. ‘Explain to the jury who was the owner of that elevator and your relations to it?’ A. ‘Well, for a time I was the proprietor and later on it was sold to Mrs. Julia A. Allen.’ Q. ‘About when do you think you sold to Mrs. Julia Allen?’ A. ‘I could not tell from my books. Possibly I could tell exactly from that account.’ Q. ‘If you can,-you can refresh your memory? (Handing witness papers in the case.)’ A. ‘My remembrance is that it was November 4, 1898.’ Q. ‘That you sold it to her?’ A. ‘Yes, that is my remembrance.’ Q. ‘November 4, 1898 ? ’ A. ‘Yes, sir.’ Q. ‘After you sold to her, then what was your relations to it, after that?’ A. ‘I was manager.’ Q. ‘Then during this entire time you were there in control?’ A. ‘Yes, sir.’ Q. ‘Doing business?’ A. ‘Yes, sir.’ Q. ‘During that time you were in there either as owner or agent, managing it for Mrs. Allen, under what name was this business run?’ A. ‘Sedalia Elevator Company.’ Q. ‘It wasn’t a corporation or anything of that kind?’ A. ‘No, sir.’ Q. ‘It was just a name adopted to indicate the business?’ A. ‘Yes, sir.’ Q. ‘You first owned it and then Mrs. Allen?’ A. ‘Yes, sir.’ Q. ‘During*65 that time did you sell any goods to the firm of Laura and Gertrude Goodrich?’ A. ‘Yes, sir.’ Q. ‘Have yon examined these accounts.’ (By Mr. Steele.) ‘I desire to object to any evidence on this account. It is made out Laura and Gertrude Goodrich to W. M. Harbaugh and then it says: “Mgr.” which may be construed to mean manager, and then somebody has written in there “For Julia Allen,” and on the next page it,says, “Laura and Gertrude Goodrich to W. M. Harbaugh,” and on the next page, “Laura and Gertrude Goodrich to W. M. Harbaugh, Dr. ’ ’ Then on the next page it is the same way and the same on each page. It is Laura and Gertrude Goodrich to W. M. Harbaugh. That is the account as made out here. There is nothing here indicating that Mrs. Allen is claiming anything of these defendants, but Laura and Gertrude Goodrich, Dr., to W. M. Harbaugh. I object to it on that ground, and I think they have no right to introduce- any evidence on that account.’ ”
The additional fact appears that at the beginning of each page of the account a balance was entered from the preceding page. Objection was made by defendants to the admission of any testimony because of the insufficiency of plaintiff’s statement, whereupon plaintiff offered to' amend by striking out the name of Harbaugh and inserting that of Julia Allen; which offer the court refused. Plaintiff- then offered evidence to sustain her case. To this defendants interposed objections' which were sustained by the court, and she took a nonsuit and appealed.
Section 3852, Revised Statutes 1899, regulating practice in a justice’s court, does not require formal pleadings, but it requires before any process shall be issued in any suit, “the plaintiff shall file with the justice the instrument sued on, or a statement of the account or of the facts constituting the cause of action
It seems to us that plaintiff’s motion to strike from the account the name of W. M. Harbaugh should have been sustained. Section 3957, idem, provides: “Any justice may, in open court, in furtherance 'of justice and on such terms as may be proper, amend, on motion of either party, any statement,” etc.
The motion of plaintiff was not to substitute the name of Julia Allen for that of W. M. Harbaugh as plaintiff, but to strike from the account the name of said Harbaugh and substitute that of plaintiff. The defendants were notified by the statement that plaintiff was the owner of the account although it stated that defendants were indebted to Harbaugh. This was a defect in the statement — nothing more. And there is ample authority in the latter section of the statute for the amendment of such statements. The offer made was not to amend Harbaugh’s cause of action, as contended by respondents, but that of plaintiff. And it was not a substitution of one cause of action for another. The statement was sufficient to notify defendants that they were sued for the items mentioned in the account. [Maxwell v. Quimby, 90 Mo. App. 469.] In First State Bank v. Noel, 94 Mo. App. 498, it is held that, “the filing of a note alone, in a justice’s court, is sufficient, and no statement is necessary showing how plaintiff holds the note.” That case followed Collins v. Burrus, 66 Mo. App. 70.
Reversed and remanded.