104 Mo. App. 434 | Mo. Ct. App. | 1904
From a judgment before a justice of the peace, defendant appealed to the circuit court of Greene county, where he raised the objection that the account sued on did not show upon its face whether respondent was a partnership or incorporated; the court permitted respondent to add the words “a corporation” to its title and subsequently an amended statement was filed by leave of court and a jury being waived, the case proceeded to trial before the court.
The evidence developed-that appellant, a resident of Springfield, bought a bill of goods from respondent at office of tiie latter in Kansas City, amounting -to $104.39, for cash, the shipment was made but payment was withheld despite repeated demands for the debt, and in the end the appellant sent a draft for $14.38, together with an order on one Seymour for $90, to be in
The testimony on behalf of plaintiff was in form of depositions of witnesses in its employ conversant with the transaction and some correspondence between the parties. At trial in the circuit court, the appellant first testified and stated that before purchasing the merchandise an agreement was had with respondent, through its secretary and manager, that an indebtedness of $90 from one of plaintiff’s workmen, one Seymour, to defendant, should be accepted by the plaintiff in payment of any goods bought, and if the amount of his purchase exceeded the sum due by Seymour, a draft for such difference would be accepted and that he bought on such condition and terms. On cross-examination he conceded that such defense was not made before the magistrate, that in three letters written to plaintiff after buying, he made no mention of such arrangement and in frequent subsequent visits to Kansas City he had not visited plaintiff’s place of business to claim benefit of the agreement, explaining that he took it for granted that plaintiff understood it, or it had escaped his own recollection in writing, and that he had-communicated with plaintiff by telephone in Kansas City, asking a compromise before suit was brought. Pending the cross-examination of defendant, at request of plaintiff’s attorney, an adjournment was granted to the next day to afford plaintiff’s manager referred to in defendant’s testimony, whose deposition had been taken and offered, an opportunity to appear at the trial and upon his'arrival from Kansas City, he further testified orally, detailing the only conversation with defendant in which defendant made inquiries regarding his debtor Seymour, and requesting plaintiff’s aid in enforcing payment, which was refused, and denying also defendant’s version of the telephone communication, and stating that after
1. The amendment sanctioned by the court descriptive of plaintiff’s corporate character was plainly within the scope of the statute. E. S. 1899, sec. 657. Amendments are largely discretionary with the trial court and are to be favored and freely and liberally allowed in furtherance of justice. The amendment entitling the plaintiff corporation in conformity to such undisputed fact could not in anywise prejudice defendant and was properly permitted. Stewart v. Van Horne, 91 Mo. App. 647; Hixon v. Selders, 46 Mo. App. 275; Goddard v. Williamson’s Admr., 72 Mo. 131.
2. The law is well settled that an acceptance of a tender of part of a liquidated indebtedness, qualified by the debtor by condition that its acceptance shall be in full satisfaction, does not discharge the balance unpaid or bar an action therefor, unless the dispute as to the sum due is in good faith, otherwise there is no consideration for the acceptance of the lesser for the greater sum. St. Joseph, etc., v. Hull, 72 Mo. App. 403. Begarded most favorably for defendant, the trial court found that the contention regarding the amount of indebtedness from defendant to plaintiff was not made in good faith, and that no just ground existed for such attempted dispute, and this finding is well supported by
