132 Mo. App. 507 | Mo. Ct. App. | 1908
Plaintiff, a corporation, brought suit on an account alleging that defendant was indebted to plaintiff in the sum of $507.44, for goods, wares and merchandise sold and delivered, “all of which items of goods, Avares and merchandise and the said credits are shown by the itemized statement of account hereAvith filed.” By an oversight, no itemized statement was filed with the petition, nor was one on file when the trial1 began. Defendant demurred to the petition on the ground that it failed to state facts constituting a cause of action, and after the overruling of the demurrer, filed answer. Later, in an amended answer, defendant alleged that plaintiff entered into a contract with defendant in October, 1904, by the terms of which plaintiff sold six hundred bushels of onion sets to defendant to be delivered on board cars at Atchison, Kansas, betAveen the first and fifteenth days of the following February, for which defendant agreed to pay $1.35 per bushel; that plaintiff delivered three hundred bushels of sets of inferior quality on the 9th day of the folloAving March, and failed to deliver the remainder
Plaintiff, at the trial, amended the petition by leave of court, changing the amount alleged to be due from $507.44 to $507.24. Defendant objected to the introduction of any evidence on the ground “that an itemized statement of the account is not set forth in the petition, and no itemized account has been filed with the petition.” The objection was sustained, whereupon plaintiff asked and was granted leave to file an itemized account forthwith. Defendant then presented the following verified application for a continuance:
“Now comes the defendant and asks the court that this cause be continued until the next term for the reason that plaintiff has been permitted by the court to-amend his petition herein filed by the filing of an itemized statement of account, and for the reason that no itemized statement of the account was filed with the original petition in this cause, and for the further reason that the petition in this cause did not contain a statement of the accounts between plaintiff and defendant herein sued on, and for the reason that defendant could not know from the petition filed herein what items
Plaintiff objected to the granting of a continuance and the court heard oral evidence on the merits of the application, from which it appeared that the contract alleged in the answer and admitted in the reply was the only unsettled business 'transaction between the parties. Defendant’s president, while on the witness stand, was asked by the court: “Well, if you are given a copy of this account and are not required to close your case until tomorrow, so that you could check it up tonight, wouldn’t that enable you to present all the information necessary?” To which he replied: “Well, as far as — now, I am in the hands of my attorneys, I suppose.” The Court: “No, you are in the hands of the court.” “A. Well, as far as I am concerned, yes.” The court then said: “I will overrule the application for a continuance, but, further along, if, during the trial of the case, it appears that the defendant has reasonable grounds for renewing the application, I will permit it to do so.” Later, in the course of the trial, defendant, unsuccessfully renewed the application for a continuance. Nothing occurred to indicate even faintly that defendant had been caught unprepared in any way by being compelled to go into the trial. The jury returned a verdict for plaintiff for the exact amount demanded in the petition as amended and the cause is here on the appeal of defendant.
We think the court acted properly in permitting plaintiff, over the objection of defendant, to file the itemized statement of the account. The failure either to plead the items of the account in the petition or to refer therein to a statement of account attached to that pleading is made by statute ground for refusing plain
It is urged by defendant that the court erred in overruling its application for a continuance, but we do not find any abuse of discretion in what was done. Defendant was not entitled to a continuance from the mere fact that, in effect, a pleading of its adversary had been amended. The court had the right to call on defendant to show that it was not fully prepared to meet issues tendered for the first time by the amended pleading. Such showing may be made either by affidavit or oral testimony, and where it appears reasonably probable that the applicant is not prepared to go on with the trial, a continuance should be granted, but where, as here, it appears from the pleadings of defendant, his application for a continuance, and his oral testimony, that he has prepared himself to meet the issues tendered by the amendment, it would be nothing short of farcical to grant him a continuance solely on the ground that the petition had been amended in a material respect.
Complaint is made of the rulings of the trial court on the subject of the measure of damages applicable to the cause of action alleged in the counterclaim of the defendant. The verdict being for the full amount demanded by plaintiff in the petition, demonstrates beyond question that the jury found against defendant on the issue of a breach of contract by plaintiff. This being the case, we cannot perceive any reason for believing that defendant might have been prejudiced by the error, if any, which is the subject of present complaint. The jury had to find that plaintiff had broken the contract before it could consider the subject of awarding dam
Other points are made, but we find them to be without merit. The judgment is affirmed.