28 Mo. App. 614 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This is an action to recover a balance claimed to be due upon an account stated. The account sued on and filed with the petition is as follows :
Amount. Date.
1881.
Nov. 1, To balance from last statement.$3,224.25
Dec. 8, To 5000 May Corn Chicago....... 443.75
1882.
Oct. 30, Interest to November 1, 1882. 246.28
$3,914.28
1882.
Oct. 30, To balance Dr.. .$2,359.78 E. and O. E.
In account with E. A. Kent & Company, St. Louis, Mo.
Date. Amount.
1881.
Nov. 10, By cash-interest on note J. T. Heard.......$ 25.00
Dec. 16, By Balance note R. W. Keyle. 101.50
Dec. 19, By One year Int. on 2 year note of Swart..... 37.50
1882.
Jan. 24, By one year Int. on 1 year note of Swart..... 37.50
June 21, By Note, Annie Swartz...... 375.00
June 21, By Int. on above 12-18,1881, to ' date.......... 19.00
July 13, By note, Annie Swartz...... 375.00
July 13, By interest • on above....... 19.00
Aug. 25, By check, J. A. Mann, in payment Heard note, May 1, 1881, renewed Nov. 7, 1881.. 500.00
Aug. 25, By Int. on same. 65.00
Oct. 30, By Bal. down... 2,359.78
$3,914,28
E. A. Kent & Co. P.
St. Louis, Oct. 30, 1882.
The petition states that the balance of $2,359.78 was reduced by a subsequent credit of $1,340.50, leaving a balance of $1,019.28, which, with interest, is sought to, be recovered in this action.
The answer denies any indebtedness; denies that the parties ever had any accounting together, or that they ever stated the account; admits the credit of $1,340.50 as a just credit, but denies the balance. It
“Defendant further avers that among other items* entering into said account, that the plaintiffs have erroneously charged him with a sum of $406 on the twenty-sixth day of August, 1881, and the further sum of $768.75, on the second day of September, 1881, and the further sum of $1,431.25, on the twenty-seventh day of October, 1881.
“ That the defendant ought not to be bound by a specification of the said several mistakes in plaintiffs’ account, in exclusion of others which he verily believes could be detected, had he the opportunity of examining and inspecting plaintiffs’ books and accounts referring to the transactions between him and the plaintiffs.
“Wherefore, he prays this court to appoint a master, or referee, to take and state an account between plaintiffs and defendant, concerning their said several dealings, from the year 1881 to 1883, inclusive, that is to say, from the beginning to the closing of their business dealings, and that he have judgment for whatever balance may be found due him upon a statement of such account, and for such other and further relief as to the court may seem just and proper in the premises.”
After filing his answer the defendant made a formal motion in writing to refer the cause to a referee, assigning for ground of the motion that the issues involved the examination of a long and complicated account. This motion was overruled by the court. The cause was thereupon tried before a jury, who found a verdict for plaintiffs for the amount claimed in their petition.
The errors assigned are that the court erred in overruling defendant’s motion to refer; that there was no legal evidence of an account stated between the parties; that the court erred in refusing evidence offered by the defendant to show other mistakes in the account than
The first point must be ruled against the appellant. In Fitzgerald v. Hayward (50 Mo. 525), the Supreme Court, in construing the statute, says: “The court is not bound, in any case, to make a reference; the statute is not mandatory, but directory, and it rests in the discretion of the court whether, in a proper case falling within the provisions of these sections, it will order a reference.” This case has not been questioned, and is in itself controlling. It is only a gross abuse of discretion which would authorize an appellate court to interfere. None such is shown in this case. The plaintiffs sue on an account stated, and must recover on that theory, if at all, and the defendant’s answer only questions three of the items in the account. There was neither a multiplicity of issues nor items to call for a reference. Schmidt v. Rose, 6 Mo. App. 578.
The second point must likewise be ruled against the appellant. The mere fact that the account furnished contained the letters, “ E. & O. E.”, shown to mean “errors and omissions excepted,” does not the less constitute the account a stated account, if it conforms with other requisites of such a paper, and shows a precise balance due. Johnson v. Curtis, 3 Bro. C. C. 266; Young v. Hill, 67 N. Y. 176. There was evidence showing that the account sued on was sent to the defendant October 30, 1882, and that he subsequently promised to pay the balance. The defendant denies that he received this account at any time, but his answer admits its receipt in the following terms: “The defendant says * * * that, on the thirtieth day of October, 1882, the plaintiffs rendered to him a statement of account, which is marTced as an exhibit and filed with plaintiffs’ petition herein, which purported to state an approximate or estimated balance of $2,359.78, as due by the defendant to plaintiffs ;” and again: “defendant avers that the said statement of account so rendered at said date has errors therein and omissions therefrom,” etc.
Touching the third point made by appellant, it appears by the record that every opportunity was offered him to challenge the correctness of the three items specifically pointed out in the record as incorrect. If there was a settlement, which is the theory of plaintiffs ’ petition, and the theory on which the case was submitted to the jury, it was incumbent upon .the defendant, who seeks to avoid it, to point out specific errors or mistakes. Kronenberger v. Binz, 56 Mo. 122. He cannot reopen the entire account by a simple challenge of the balance, nor by a reservation in the answer, as attempted here, “that he ought not to be bound by a specification of the said several mistakes in plaintiffs ’ account which he verily believes could be detected,” etc. There is, therefore, no merit in defendant’s complaint on that account.
As to the instructions, it appears that the case was submitted to the jury fairly on instructions presented by both parties in support of their respective theories of the evidence. The defendant complains that the first instruction given for plaintiffs is incorrect in containing this objectionable phrase, “and if you also believe that defendant received such account, and retained it for a considerable time without objection thereto,” etc. Conceding that the use of the words, “fora considerable period of time,” was inappropriate, it is not apparent how the defendant was prejudiced thereby, since he failed to show that he made any objection to the account prior to the institution of the suit, which was June 4, 1883, more than seven months after the rendition of the account.
It appears that the defendant first asked six instructions, three of which the court gave. Among the instructions thus given were the following:
“1. That the action is brought upon an account stated, and the plaintiff is not entitled to recover thereon unless the jury believe, from the evidence, that an amount definite and certain had been agreed on between the parties, or stated by plaintiff and assented to by the defendant.”
“ 3. That an account stated is a sum fixed and determined by consent or acquiescence of the parties.”
Thus it will appear that the court had already instructed the jury, both as to the nature of the action, and as to the meaning of an account stated, in the very terms requested by the defendant, and was under no obligations, either to multiply the instructions on that subject, or to elaborate the, definition in instructions subsequently asked.
Judgment affirmed.