71 Mo. App. 299 | Mo. Ct. App. | 1897
The plaintiff sued defendant before a justice of the peace to recover the sum of $250.32 for freight on two hundred and eighty boxes of lemons shipped over the plaintiff’s railway, etc.
There was a trial in the court below resulting in a verdict for defendant, which was set aside on motion of the plaintiff for the reason, as appears from the recitals in the order, “that the evidence in this cause fails to show that the agent or department of the defendant, whose duty it was to adjust claims of the character of the one in question, had received such notice of defendant’s claim as would bind it as upon an account stated. The powers of the ‘street man,’ as he was termed, are not shown to have embraced the authority to adjust the defendant’s account. And this authority ought to be shown, and very likely may be, on a retrial of the cause.”
On October 20, 1893, the defendant inclosed an account to plaintiff’s commercial agent at Kansas City, for the car load of apples, and also a letter.in which it was stated that the plaintiff had made certain overcharges on the car load of lemons. It was therein further stated that “inasmuch as this matter is in controversy, we present again our claim for 150 barrels of apples which you received from us to go to' Houston, Texas, the twelfth day of October, 1889. Something happened to the car of apples whilst in transit, as you reported it, you did not deliver it, and you have never settled with us for it. We would like a settlement of this car of apples at early date, and of course we want to settle the matter in controversy in this car of lemons.”
It appears further from the evidence that sometime prior to the writing of the letter inclosing the account, that defendant had attempted to obtain a settlement of his claim, but that plaintiff had only offered it $27 in discharge of the same, which was not accepted. The statement in the defendant’s letter that “we present again our claim for 150 barrels of apples,” etc., no doubt refers to such attempted settlement, and we think shows quite satisfactorily that the object the defendant had in writing the letter and inclosing its account was to reopen the negotiations for a settlement which had been previously begun without success. Whether or not defendant delivered its account and accompanying letter to an officer or agent of the plaintiff authorized to expressly or impliedly concede the correctness of defendant’s account, is immaterial, since such account and letter can not, in our opinion, be regarded as an account stated, for the reasons we have already sufficiently indicated.
The order of the circuit court in setting aside the verdict will be affirmed.