Lockhart v. Moss

53 Mo. App. 633 | Mo. Ct. App. | 1893

Bond, J.

— This action was brought before a justice of the peace upon the following statement:

“State oe Missouri, 1 “County of Stoddard. J

“James Lockhart' upon his oath says that Thomas J. Moss owes him $18 upon one order which is due him and unpaid; which said order is now in the possession of defendant. James Lockhart.

“Sworn to and subscribed before me this the twenty-eighth day of October, 1887.

“M. L. Crabtree, “Justice of the Peace.”

Judgment was recovered by the respondent both in the justice’s court and in the circuit court.

The cause was tried in the circuit court without'the intervention of a jury. The evidence tended to prove that the order sued on was given in payment of a cow sold and delivered by the respondent, was drawn upon the appellant by Isaac Cardwell, who was then engaged in doing work for appellant, and was expressed in language, to-wit: “Please pay to the order of James Lockhart. the . amount of $18, and charge to the account of.”

The evidence further tended to prove that this order was taken by the respondent to the store owned by the appellant and handed to his clerk or agent, who took it and said it could not be paid until next pay day; that the order was never returned to the respondent, although demanded by him when he had a settlement of his running account at the store owned by the appellant; that the amount of the order was •deducted by the appellant when he subsequently settled with the drawer, Isaac Cardwell, but no part of the amount drawn for was allowed the respondent on his said settlement with appellant. It may be conceded that the order sued on is embraced in the definition of bills of exchange, the proof showing that it was an unconditional written order by one person on another for the payment of a certain sum of money to a third person or his order (Tiedeman on Commercial Paper, sec. 2, and notes); and that, therefore, the rights of the payee (respondent) are determined by the provisions of our statutes as to the liability of acceptors in his suit against the drawee. While the general statutory rule requires acceptances to be in writing (Revised Statutes, 1889, sec. 719) in order to charge any person as acceptor of a bill of exchange, another section (Revised Statutes, 1889, sec. 724) prescribes a modification of the requirement as to writing, when the drawee “shall refuse * * * within such period as the holder may allow, to return the bill accepted or non-accepted to the holder.” In such cases the drawee shall be deemed to have accepted the bill. Under the facts in this case there was ample evidence to meet this statutory exception to the rule as to the necessity of a written acceptance of the order or bill of ■exchange drawn upon appellant.

Nor can we sustain the theory of the appellant, that the statement filed before the justice does not state facts sufficient to constitute a cause of action after verdict. “In ordinary proceedings before justices of the peace, all formalities in pleadings are disregarded. It is sufficient, if the account sued on, or the statement filed by the plaintiff, advises the adverse party of tho nature of the plaintiff’s cause of action, and is sufficiently definite to bar another action for the same claim.” Gregg v. Dunn, 38 Mo. App. 286; Dahlgren v. Yocum, 44 Mo. App. 277. It has been held, that “an issue raised on the statement of a legal conclusion, which presents the real point in controversy, will be regarded as sufficient after verdict.” Jackson v. Railroad, 80 Mo. 147, 150. Nor shall a judgment be-reversed “for omitting any. allegation or averment, without proving which the triers of the issue ought not. to have given sucha verdict.” Revised Statutes, 1889, sec. 2113, and notes.

Tested by these rules, we think the statement in this case is sufficient to support the judgment. It. describes by necessary implication or express, averment the drawee, the payee ' and the amount of the order-sued for, and avers that it is in the possession of the appellant. The evidence was uncontradicted as to the-fact of the reception of the order thus described by the person in charge of appellant’s store. The mere-omission .of the drawer’s name in the statement may well be supplied by the proof establishing that the-order or bill in all other respects was the one described in the statement. By its very terms the statement, riecessarily averred that the “order” was drawn; it-was defective only in not stating the particular drawer. It did set forth all the other parties and the amount of' the order or bill, and the omission of this name may be well brought within the curative 'provision of the-statute, Revised Statutes, 1889, sec. 2113, supra.

Nor can we uphold the position of the appellant as-to the want of evidence of the agency of Schull to-receive the order from respondent. There was substantial evidence that he represented appellant in paying off such orders at his store, and that he was. the one who settled with the drawer and charged him with the amount of said order. It is true there was. conflicting evidence as to this, but it is not our province to weigh the evidence, and the views herein expressed cover all the material assignments of errors of law.

The judgment is affirmed.

All the judges concur.