134 Mo. App. 130 | Mo. Ct. App. | 1908
This action was instituted before a j ustice of the peace on tbe following account:
“Wm. O’Connor
In account with Wm. E. Magoon, Dr. 1903.
To work done on Fort Smith & West-.. ern Ry.$1,600.70
6% Int. from Mar. ’06 to date,.68.00
$1,668.70
*131 Credits.
1903.
By Oct. ac. $645.77
” Nov. ” . . 201.00
” .Cash ” . . 100,00
” Credit.. . 223.15
$1,169.92
$1,169.92
“Balance Une, .$ 498.78
The case proceeded' to the circuit court where leave was obtained to file an amended account or statement, which was as follows:
“Wm. O’Connor,
“In account with William E. Magoon, Debtor. 1902-3.
To work done on the Fort Smith and Western railroad, during the months of October and November, 1902, on stations 160-25, to 178-76, section 195, on said road, the work done being itemized as follows; as per Estimate hereto • attached marked Exhibit ‘A’.
Excavating 3000 'cubic 'yards eiarth at 11c.$330.00
Excavating 670 cubic yards loose rock at 25c. 167.50
Excavating:. 1920 cubic yards solid rock at 55c.1,056.00
To 4720 cubic, yards overhaul at lc.. 47.20
$1600.70
“Said work was done under Contract “Interest at 6% from March 20, 03 • on $430.78, to date of suit,'.$68.00
*132 Credits.
1902
By October account for labor paid and goods and merchandise furnished, $645.77
By November account for labor paid and goods and merchandise furnished, .201.00
Nov. cash paid, ...... 223.15
1903.
March. By check of Wm. O’Connor,.. 100.00
$1,169.92
“Balance due $430.78 and interest.”
Appellant saved an exception to the amendment and now insists it was wrongly permitted for these reasons : the original account filed with the justice was too deficient as a statement of a cause of action, to be amended, and even the amended statement did not state a case.
T. The last contention may be dismissed with a word; for certainly the complaint or statement as amended in the circuit court, was sufficient to apprise defendant of the claim against him and bar another action for it. [Weese v. Brown, 102 Mo. 303.]
2. To support the other proposition, that the amendment ought not to have been permitted because the original account stated no cause of action, these cases are mainly relied on: Brasher v. Strode, 46 Mo. 221; Petticord v. Railroad, 85 Mo. 160, and Sidway v. Live Stock Co., 163 Mo. 373. In the first one the paper filed before the justice was in this form: “M. F. Strode (and others, naming them) to Richard Brashears, to Fifty dollars ($50).” The real case was a claim for damages because the alleged debtors had failed to take a kiln of brick Brashears had been hired to burn for them, and on the appeal to the circuit court he was allowed to amend his statement to show the transaction. The
3. It is insisted the second complaint changed the cause of action. The same indebtedness, principal and. interest, is shown in the two statements, as are also the same credits and balance due; but in the second the debit items are particularized. The only difference be
The judgment is affirmed.