122 Mo. App. 631 | Mo. Ct. App. | 1907
The action is for an alleged balance of $133.08, on account of electric power furnished defendant by plaintiff, under a written contract between the parties, dated October 31,1903, and was commenced before a justice of the peace, from whose judgment the cause was appealed to the circuit court of the city of St. Louis, where on a trial ele novo plaintiff recovered a judgment, from which defendant appealed to this court. The controversy arose from an alleged mistake of one of plaintiff’s bookkeepers, in describing the meter installed in defendant’s premises as “■£ constant,” when in truth and in fact the meter was “1” or “0 constant,” by reason of which error or mistake the monthly bills rendered defendant for the twelve months in the year 1904, and the months of January and February, 1905, were for only one-half of the electric power furnished. Prior to January, 1904, the monthly bills of defendant were made out from meter slips — slips made by plaintiff’s meter readers from showings or readings on the dial of the meter — which shoAved the actual electric energy furnished. Commencing with January, 1904, the monthly bills were made from plaintiff’s register book, a book
Defendant asked an instruction on two theories; first, that plaintiff could not recover if the mistake was
“The jury are instructed that the execution by the defendant of the contract sued upon is admitted, and if you find and believe from the evidence that plaintiff delivered to defendant electrical energy which at the contract price amounted to $267.98, and by mistake charged defendant with electrical energy which, a.t the contract amounted to $134.90, and that the defendant paid no more than $134.90, then you will find for the plaintiff in the sum of $133.08, and interest from July 25,1905, at the rate of six per cent per annum.”
And for defendant as follows :
“The court instructs the jury that if the plaintiff intentionally, that is, not by mistake, as to the true amount thereof, made or retained the entry of one-half constant in the register from which bills were made out although knowing that the constant was 1, your verdict must be for the defendant.”
Defendant contends that the rendition of the monthly bills by plaintiff and the payment of the same by defendant constituted monthly accounts stated and settlements of the same, and that these settlements can only be set aside for fraud or mistake by a bill in equity. The case was not tried on this theory. This defense was not interposed by answer, by objection to the evidence or by instructions asked; neither was the attention of the trial court called to it by the motion for new trial. That a case must be disposed of on appeal on the same theory