Connor v. Heman

44 Mo. App. 346 | Mo. Ct. App. | 1891

Thompson, J.

This was an action on an account. The plaintiffs had a verdict and judgment, and the defendant appeals to this court.

I. The first assignment of error is that the petition states no cause of action. The petition is drawn substantially in conformity with form number 7 in the appendix to the Revised Statutes. 2 R. S. 1889, p. 2234. Those forms were first enacted by the legislature in the practice act of 1849. In the revision of 1855 they were not re-enacted, but were printed as an appendix, in which way they have appeared in every subsequent revision. As so printed, they are not understood to have the force of law. A petition drawn in conformity with this form, and substantially like the one in the present case, was held good in Gramp v. Dunnivant, 23 Mo. 254; but, when that decision was rendered,' the form in question stood in the practice act and had the force of law. The statute governing, the question provides: “It shall not be necessary for a party to set forth in a pleading the items of the account therein alleged; but, if they be not set forth, he shall attach to his pleading, referring to it therein, a copy of the account, which shall be a part of the record ; but, if they be not set forth in, or attached to, said pleading, he shall be precluded from giving evidence thereof.” R. S. 1889, sec. 2075 ; R. S. 1879, sec. 3547. When the petition is upon an account, and the account is set forth in conformity with this *348statute, the exhibit is a part of the record. Hassett v.Rust, 64 Mo. 325. In this case the petition recites that an itemized statement of the account is ‘ ‘ hereto annexed and marked exhibit A,” and the answer refers to it as “filed therewith,” and the appellant’s statement in this court admits that the account was so annexed. Reading the account as a part of the petition, we are of opinion that it sufficiently advises the defendant of what he is called upon to meet; and we are strengthened in this view from the fact, that his defense was placed entirely on an extrinsic ground, and that he made no objection in any form in the .trial court to the sufficiency of the petition, not even by a motion in arrest of judgment.

II. The objection that the allegata and. probata do not concur, and that the evidence leaves the petition unproved in its entire scope and meaning, is plainly untenable. The plaintiffs gave evidence tending to show that they had expended the money, performed the services, and sold the goods embraced in their bill of items.

III. The defendant, in addition to a general denial, set up in his answer that “the transactions referred to in the petition herein and the exhibits filed therewith, and which constitute the alleged cause of action,” etc., “relate wholly to wagering contracts known as ‘deals’ between the plaintiffs and defendant on the market price of wheat and corn for future delivery.” There was substantial evidence supporting this affirmative defense. The court gave an instruction with reference to this evidence, which is now complained of, in so far as it told the jury that they should find for the defendant, if it was “mutually agreed and understood” between the plaintiffs and the defendant that no wheat or com was to be delivered or received in settlement of such sales, but that the same were to be settled merely by the payment of differences, etc. The criticism upon this instruction is that it does not state the principle to which the law in this state has come; namely, that, if *349the parties at the time the contract is made do not intend that any grain shall be delivered, the contract is void. We do not so interpret the language oí this instruction. We understand that the use of the word “understood” is tantamount to the use of the word “intended,” and we threw them into juxtaposition in discussing this very point in Hill v. Johnson, 30 Mo. App. 389, where we reviewed the decisions of this state on this question, and came to the conclusion that either an agreement between the parties at the time of the contract that it should be performed by the settlement of differences, as was held in Kent v. Miltenberger, 13 Mo. App. 503, 510, or an intent or understanding to that effect, which is the latest doctrine of the supreme court, as shown by the case of Crawford v. Spencer, 92 Mo. 498, is sufficient to avoid the contract.

IY. Error is assigned on the refusal of thirteen instructions tendered, by the defendant. These instructions were severally directed to different items of the account. A sample of them is this: “The court instructs the jury that plaintiffs cannot charge defendant with the first item in their account, unless the jury believe from the evidence that the plaintiffs purchased from Cole Bros., on March 9, 1888, fifteen thousand bushels of wheat, to be delivered in May, 1888, and that he purchased said wheat and paid Cole Bros, for the same at the instance and request of the defendant.” The other instructions refused, of which complaint is made, were all like this, except that they were directed to different items of the account. There was no error in refusing these instructions, by reason of their number alone. The court had already advised the jury that, in order to recover, the goods must have been sold or purchased at the instance and request of the defendant; and that was enough. It was not necessary to repeat this with reference to each item of the account.

The judgment will be affirmed.

All the judges concur.