Sprague v. Follett

90 Mo. 547 | Mo. | 1886

Black, J. —

This suit was brought before a justice of the peace on an account for flour, consisting of thirty or more items, and credited with half as many different payments. On trial anew in the circuit court, and after the evidence was all in, the plaintiffs asked and had leave to, and did amend their statement by the addition of another item for $31.75; and of this ruling error is assigned.

There was evidence tending to show that a credit of $31.75, given on the account, was for flour sold on the fourteenth of November, but not included as a charge in the bill of items. Other evidence tended to show that this item was included in a charge of date, November 17. Whether the fact was the one way or the. other was a question for the jurors, and the amendment was made in order to allow them to pass upon the question. The fact that the omission of the item from the account filed with the justice was due to a failure to charge the flour on the books at the time it was sold, and not to a failure to correctly copy the account for suit, is of no consequence. It was the evident purpose of the plaintiffs to sue for the whole of the flour sold defendant. Under the liberal provisions of Revised Statutes, 1879, section 3060, the amendment was properly allowed and made. • Under this section we recently reversed a cause because an amendment, by striking out the name of one of the plaintiffs, was not allowed. Davis v. Dichie, 85 Mo. 501.

Judgment affirmed.

All concur.