90 Mo. App. 96 | Mo. Ct. App. | 1900
This is an action on a stated account. Prior to May, 1898, the defendant purchased beer from the plaintiff. A pass-book was furnished defendant in which were entered the daily purchases of beer.. At the end of each month the book was delivered to plaintiff. The payments and rebates for the month were immediately entered by plaintiff, a balance struck, and the book returned to defendant. This was done on May 1, 1898, and the book thus balanced showed an indebtedness due plaintiff of $933.50. The plaintiff claims that the retention of the book thereafter by defendant without objection created a stated account between the parties, upon which it bases its suit. The answer contains a general denial. The
That portion of the answer alleging that the balance as shown by the pass-book was erroneous by reason of the alleged transaction between plaintiff and defendant concerning the claim against the building and loan association, was properly stricken out, as the answer contained no averment that this alleged credit was omitted from the account through fraud or mutual mistake. In the absence of proper averments sufficient to surcharge and falsify a stated account, no evidence is admissible except that tending to disprove the existence of the account, that is that there had been no dealings between the parties, or that the defendant had not consented to the alleged settlement. This is reasonable, for an action on a stated account is based on a new promise to pay into which all prior negotiations or transactions are merged. The suggestion that the rejected portion of the answer was sufficient as a plea of payment, is without force, for payment in such a ease must necessarily postdate the settlement. The transaction mentioned in the answer antedated the settlement.
Under 'the pleadings the circuit court tried the case eor
Tbe judgment of tbe circuit court will be affirmed.