127 Mo. App. 228 | Mo. Ct. App. | 1907
This action was instituted on an account stated, the petition having been filed and summons issued September 13,1904. It appears that as originally begun the action was on an ordinary open account, which was filed with the petition, to recover $3,790.60. The petition having been held bad for uniting several causes of action in one count, an amended petition was filed, declaring on an account stated for the sum mentioned, and alleging the statement of the account occurred December 15,1903, and was had between plaintiff and defendants, William and Julia Kennedy, husband and wife; that it was agreed between plaintiff and the
First: Commission due defendant from plaintiff for preparation of plans and specifications for a residence for defendant at the corner of Grand and Cleveland avenues in the city of St. Louis, and obtaining bids for the construction of said residence..........$915.18
■ The date of this item was 1894 Second: From May 17th to July 1, 1894, Commission for preparing plans and spec
Third: From July 1, 1894, to March 1, 1895, Commission for changing and altering plans and specifications for a residence at the corner of Compton and Allen avenues, and obtaining, and examining and selecting bids........ 773.45
Fourth: Work and labor of Kennedy and two teams in superintending and overseeing the construction of the last mentioned house, 240 days at $10 per day. .2400.00
After setting out said four items, the counterclaim enumerated several hundred other items, of which the first debit is dated December 16, 1896, and the last debit December 15,1903, and the first credit May 21,1896, and the last credit March 10,1903. The debit items consisted of charges against plaintiff’ Vogel for various items of indebtedness he is alleged to owe defendant for the latter’s services in repairing property, or for rents which plaintiff had collected; whereas the credit items represent sums due from defendant to plaintiff for the latter’s services as financial agent. These items range in amount from five dollars or less to forty-five hundred dollars, and the whole counterclaim indicates that, instead of defendant owing plaintiff, the latter owes defendant the sum of $1,885. 79. Under the rulings on the admission of evidence and the instructions given to the jury, a verdict was returned in plaintiff’s favor on. the account stated, in the sum of $2,500 with interest from January 15, 1904, and also in plaintiff’s favor on defendant’s counterclaim; and judgment having been entered accordingly, this appeal was prosecuted by defendant, It should be stated that the replication to. the counterclaim was a general denial without any plea of the statute of limitations — an important point, because
1. As we understand, the “overdrafts” consisted of advances made by Yogel to Kennedy for the latter to use in his business of contractor and builder — advances beyond funds which Kennedy happened to have in Vogel’s hands, either from loans the latter had negotiated for the former, or rents collected by Vogel as agent for Kennedy. The testimony for plaintiff is that no other item of the balance, except this interest, was objected to by Kennedy. The interest amounted to a considerable sum; perhaps $1,100. Plaintiff withdrew this part of his demand at'the trial and it was not included in the verdict. However, defendant’s counsel insists the testimony which plaintiff introduced showing defendant ob>jected to the charge of interest on the overdrafts, demonstrates that the account was not stated; that is, assented to by defendant as correct. If the remaining items were conceded by defendant and he promised to pay them, the fact that he objected to the interest did not prevent the settlement from taking effect as an account stated as to the admitted items. [Mulford v. Caesar, 53 Mo. App. 263; 1 Cyc. 378; Joseph v. Southwark, etc., Co., 99 Ala. 47; Wiggins v. Burkham, 10 Wall. (U. S.) 129;
2. The exclusion of evidence to prove the first four items of defendant’s counterclaim, on the ground that they were barred by the Statute of Limitations, was on the assumption that defendant’s testimony or the admission of his counsel, showed there was a break of a year in the continuity of the account declared on in the counterclaim; and that this break occurred some time prior to the statement of the account between the parties and, therefore, the items which accrued prior to the break were barred by the statute. This matter came up on an objection to the admission of testimony offered for.defendant in connection with the work done by him for plaintiff in 1894. Plaintiff’s counsel contended those items were barred because none of them were of an earlier date than February, 1895, and insisted that defendant should be required to show there was a running account from 1894 to the last item of the counterclaim. The following took place, and shows the positions of counsel and the court on the point in hand:
“Mr. Fissee (counsel for plaintiff) : I think that for one year prior to the present account there was no accounting or dealings between these parties, and that the accounting stated was the beginning of a new transaction between these parties.
“The Court: Was Mr. Vogel handling any property for Mr. Kennedy during that year, or transacting any business with him?
“Mr. Koerner (counsel for defendant) : No, sir.
“The Court: I will sustain the objection.
“Mr. Koerner: I will save an exception to the ruling on the ground that the statute of limitations in the
“The Court: There was nothing passed between them, you admit, during the year prior to the beginning of the account sued on in this petition; no business transactions-between them during that year?
“Mr. McLaran: I don’t think there is any account1 sued on in this petition.
“The Court: The statute certainly ran under those circumstances on these commissions for building a house and superintending it. Unless you have some other proof I will sustain the objection made by counsel for the plaintiff.”
In our judgment the court’s ruling was erroneous. It should be observed that the court put it on the ground invoked by defendant’s counsel, that it was admitted nothing passed between plaintiff and defendant “during the year prior to the beginning of the account sued-on in this petition; no business transactions between them during that year.” The court said that- certainly, under those circumstances, the commission for building a house for plaintiff in 1894, and superintending it was barred. We cannot accept this proposition. It would be a sound one if defendant had admitted the account sued on was stated between him and plaintiff; but that he denied both by answer and testimony. He swore positively, not only that the account sued on was incorrect and inaccurate in another item besides the interest charges, but that it was not a statement of the account between him and plaintiff Vogel, but of one between him and Frank Fischer. Fisher, we understand, was associated in business with Vogel, and gather that the account plaintiff sued on was a statement, according to defendant’s version, of the latter’s transactions with the
The judgment is reversed and the cause remanded.