Commercial Electrical Supply Co. v. Kroell, 85 Mo. App. 337

85 Mo. App. 337 | Mo. Ct. App. | 1900

BLAND, P. J.

— -Tbe petition contains two counts; tbe first is bottomed on a promissory note; tbe second alleged, that “on or about tbe 1st day of December, 1898, an account was stated between plaintiff and defendants, and upon said statement it was found and agreed by and between plaintiff and defendants that there was due from defendants to plaintiff a balance of $618.49, wbicb balance defendants then and there promised to pay, but bad not paid,” etc. Kroell made default. Meysenberg appeared, and for answer denied tbe second count generally, and plead payment to tbe first. A trial was bad before tbe court sitting as a jury. Judgment was recovered by plaintiff on both counts. Meysenberg appealed.

.No declarations of law were asked or given. On tbe trial plaintiff introduced evidence tending to prove tbe second count of tbe petition. To this evidence defendant Meysenberg objected, on tbe ground that no itemized statement of tbe account was filed with, or contained in tbe second count of tbe petition. Tbe objection was overruled and an exception taken. This exception is relied on for a reversal of tbe judgment. There is no merit in tbe exception. An action on an account stated is essentially different from an action on an open account. Macke v. Davis, 61 Mo. App. 524. A petition on an account stated proceeds upon the theory that the parties have accounted together and agreed upon a balance due from one to the other, and that the party found to be the debtor has expressly or impliedly promised to pay the balance found against him (Koegel v. Givens, 79 Mo. 77; Marmon v. Waller, 53 Mo. App. 610) ; and the presumption is, that all previous dealings between the parties relating to the subject-matter of the account were adjusted. Pickel v. St. Louis Chamber of Commerce Ass’n, 10 Mo. App. 191. The items of the account embraced in the settlement are not open to inquiry under a general denial of the settlement. This can only be done after evidence has been offered, under an appropriate pleading, showing that the settlement was procured by fraud, or that a mistake, prejudicial to the defendant, was made in the accounting.

The judgment is affirmed.

All concur.