Standard Scale & Foundry Co. v. Kansas City Furnace Co.

113 Mo. App. 566 | Mo. Ct. App. | 1905

ELLISON, J.

— This action was brought before a justice of the peace on an itemized account. The defendant filed before the justice an itemized counterclaim in the shape of a written answer, in which credits are set up by which, in at least one item, a contract between the parties is referred to. For' these items defendant claims that he should have credit, though they sum up more than the balance claimed by plaintiff. No objection appears to the statement of plaintiff’s cause of action being stated in the form of an account until at the close of his evidence, on appeal in the circuit court, when defendant moved to dismiss for the reason that it appeared by plaintiff’s testimony that there was a written contract covering the items of the account. The court overruled the motion and defendant has made such action the principal ground of his appeal.

When a suit is upon a written instrument the statute (section 3852) requires that it shall be filed with the justice. But if the subject matter is such that it may be stated in an account, tbe plaintiff need not sue on the contract and may state his case as an account, the contract being evidence in his behalf. [Kingsland v. St. Louis Malleable Iron Co., 29 Mo. App. 526.] If there is a verbal contract, the action may be stated in the form of an account sufficiently definite to apprize the. opposite party of the matter in controversy and to bar another action. The action need not be brought specifically on the contract. [Barham v. Colp, 87 Mo. App. 152, 156.] The statute only requires a written instrument to be filed when the action is upon such instrument. If the cause of action is such that it may be maintained as on an account, it may be so* brought. In this case the account is a full statement of the items which go to make it up and a judgment thereon would undoubtedly bar any other action involving such items.

We are of the opinion that the instructions for plaintiff given over defendant’s objections were correct. There is no good ground of objection to the third one on the subject of defendant’s counterclaim. Certainly, if the hypothesis therein submitted was believed, the finding on that subject should be as directed.

The judgment is affirmed.

All concur.