170 Mo. App. 610 | Mo. Ct. App. | 1913
This is a suit to recover a balance due on an account for groceries sold the defendants and used by them in their family. It originated in a justice court where judgment was rendered for
The defendants thereupon filed a joint motion to strike out the amended petition as a departure, but this the court overruled. Whereupon defendants filed a joint answer and submitted the disputed questions of fact to the arbitrament of a jury. A verdict was returned for plaintiff in the full amount claimed, to-wit, $187.75, and we are asked to review the judgment rendered thereon.
The first error complained of is that the court overruled defendant’s motion to strike out the amended petition which declared on a stated account and was for that reason a departure. It is held in Hanson v. Jones, 20 Mo. App. 595, l. c. 600, that such an amendment does not introduce a new cause of action, but that it remained as before, a suit for a balance due on a merchant’s account; and this ruling was approved in Newberger v. Frieda, 23 Mo. App. 631, l. c. 637. These rulings are based on the liberality accorded amendments to pleadings in justice courts where technical formality is not required. But whether the amendment was a departure or not, defendants waived all error in that regard by filing answer and going to trial, thereby taking their chances on the issues as presented by the amended pleading. Having taken their chances they must abide by the result so far as this point is concerned. [Scovill v. Glasner, 79 Mo. 449, l. c. 454; Grymes v. Mill Co., 111 Mo. App. 358, l. c. 362.]
A number of errors are claimed the basis of which is the assumption that the evidence fails to show an account stated against both or either of said defendants. We think it amply sufficient, however, to sup
It is also insisted that it was error to submit the reasonableness of the length of time the debtors kept the account without objection, since reasonableness is a question of law for the court and not for the jury. It undoubtedly is a question for the court “where there is no dispute as to the time of the rendition of the account or the time of making objection.” McKeen v. Bank, 74 Mo. App. 281, l. c. 289.] But where there is such dispute it is proper to’ submit the question to the jury in an appropriate instruction as was done in this case.
Objection is made to the form of the verdict. It read as follows:
“Oct. 28-1912.
J. C. Borkowski v. Rudolph Janicke et al.
We, the jury in the above entitled case, find for the plaintiff and against the defendant in the sum of $187.75.
W. C. Baker, Foreman.'
Instruction No. 6 is complained of as inviting the jury to find against one of the defendants only. We do not think it is open to this charge. The instruction was a form of verdict and the only ground of the charge is that a blank space was left in place of writing the names of both defendants in. Prejudicial error does not appear in this, and the verdict and judgment is so clearly for the right party, that, unless error has been shown, it ought not to be disturbed. It is, therefore, affirmed.