Cameron Sun v. McAnaw, 72 Mo. App. 196

Cameron Sun v. McAnaw

72 Mo. App. 196 | Mo. Ct. App. | 1897

Lead Opinion

Smith, P. J. —

This suit was commenced before a justice of the peace by filing of the following account:

Mr. John MeAnaw.

To B. Koss and J. C. Tracy (Cameron Sun) Dr.

Sept. 9, 1893. To printing brief in ease of T. J. Querbaeh vs.

P. D. Arnold, 79 pages at $1 per page........................$79.00

To interest at 6 per cent from maturity of claim................. 9.08

$88.08

There was a trial in the circuit court, where the cause was removed by appeal and where the plaintiff had judgment.' The defendant has appealed.

J“1™ment<:0suffi-: ciency of. The defendant assails the judgment on the ground that the statement of the account filed before the justice is insufficient to support jj]je judgment. This assault must fail. The statement is ample under the provisions of the statute, section 6138, Revised Statutes, which was lately examined and construed by us-in Glenn v. Weary, 66 Mo. App. 75. The instructions given by the court at the request of both parties are correct and harmonious expressions of the law, applicable to the facts which the evidence tended to prove. And that asked by defendant — his third — and refused by the court, was properly refused.

*198D«edi,tOT:NTwork and labor: cxtending credit. *197If the credit was extended by plaintiffs to the defendant and not to Querbaeh, or, which is the same *198thing, if the plaintiffs and defendants entered into a parol agreement by which the i ~i defendant expressly undertook and promised to pay for the printing of the briefs mentioned in the account sued on, if plaintiff would print such briefs; and that plaintiff, relying on such promise and undertaking of the defendant, did print the same, then the defendant was liable therefor. In such cases it is only necessary to inquire to whom it was understood between the parties that the creditor should look for payment in the .first instance.

Under the evidence and instructions the jury found an express agreement by which the plaintiff was to look to the defendant for payment and this finding is conclusive on us.

There are some other minor objections suggested in the brief of counsel for defendant, but these, on examination, we find to be destitute of merit.

The judgment will accordingly be affirmed.

All concur.

Rehearing

ON MOTION NOE REHEARING-.

Smith, P. J. —

Ata:TOdiruc' amount: remitaThe trial court gave for plaintiff an instruction directing the jury that if they found for plaintiff to return a verdict for $79 with interest at six per cent from the time of the demand for payment. This was error because the undisputed evidence shows that the contract price for printing the brief mentioned in the account sued on was $1 per page and that there were only seventy-six pages 0j seventy-nine. The discrepancy between the amount found by the jury and that they should have found under the evidence is too large to fall within the principle of the maxim, de minimis lex non curat.

*199The motion must be sustained and the judgment reversed, unless the plaintiff will in ten days hereafter file with the clerk a remittitur of $3.90, in which case the judgment will stand. The costs of the appeal adjudged against respondent.