8 Mo. 324 | Mo. | 1843
delivered the opinion of the Court.
Wathen sued Farr before a justice of the peace in St. Louis, and filed, as his cause of action, the following account:—
“Asa Farr to Ignatius Wathen, surviving partner of Ellis & Wathen, JDr. 1842. — September 22. — To amount assumed for an order drawn on you by Roche & Guy, $25 00.”
The plaintiff recovered a judgment before the justice for the twenty-five dollars, but, on appeal to the Court of Common Pleas, the plaintiff was non-suited.
Upon the trial, the facts upon which the plaintiff’s claim was founded appeared to be as follows:—
Messrs. Ellis and Wathen, who were partners in farming and milling in the town of Cape Girardeau, employed one Cannon, who was witness for the plaintiff in the cause, and by whom most of the facts were proved, to sell a portion of their lumber in St. Louis. Cannon sold the lumber to Roche & Guy, and received in payment an order from them on the defendant for twenty-five dollars. This order was presented by the agent aforesaid, and Farr, the defendant, received the order, and agreed to give hardware to the amount of the sum. Accordingly, the agent of the plaintiff selected goods to the value of the order, which consisted of a vice, anvil, and three hammers. The goods were weighed and marked, and the defendant was requested to permit them to remain a few days in his store. About two days after, the agent again called on Farr to apologize for leaving the goods so long in his way; but he was told that they occasioned no inconvenience, and might remain until it was convenient to take them away. When the agent called the next lime, he was informed by defendant that Roche & Guy had failed, and that he could not have the goods. It also
There was other testimony in the case, conducing to show that the defendant had given credit to Roche & Guy for the articles sold to plaintiff, but the testimony was excluded by the court.
The plaintiff was non-suited in the Common Pleas, moves to set it aside, which was refused, and brings the question, by appeal, to this Court.
There is some difficulty in deciding what degree of latitude was designed by th& legislature to suitors in justices’ courts, as to the forms of action. In actions founded on account, a bill of items is required to be filed with the justice; (R. C.,. p. 351, sec. 9;) and where an instrument of writing is the foundation of the action, the instrument must be filed. (Pp. 350, ’1, ’6.) In all cases the justice enters on his docket a brief statement of the nature of the plaintiff’s demand, whether sounding in damages, or founded on contract; (Pp.350-2;) and, finally, upon the appearance of the parties before the justice, the justice may, at the instance of the defendant, or of his own accord, require the plaintiff to make a brief verbal statement of the nature of Bis demand. — P. 354, see. 8.
It would seem, from these provisions, that all form was dispensed with, and it was sufficient if the plaintiff, in some one of the modes pointed out by the act, gives the defendant an opportunity of ascertaining what it is to which he is summoned to answer.
Indeed, the usual mode of commencing actions before justices is, by filing an account, whether the liability has arisen from a wrong, or on a contract. And it is immaterial that the justice enters it on his docket as an action of assumpsit, when the proof on the trial shows it to be an action of trover or trespass; for in actions of tort, no statement of the cause of action is necessary on the part of the plaintiff, except such statement as, by the eighth section of the third article of the act, he may be required to make verbally on the trial.
In this case, if the plaintiff had filed an account for the anvil, vice, and three hammers, and the justice had entered it as ail action of assumpsit, there can be no question but that, on the proof, he was entitled to recover, notwithstanding it was, in fact, an action of trover, and not assumpsit.
So, if the plaintiff had omitted any statement of his cause of action, and the justice had entered it on his docket, as by law he is directed, the plaintiff, on proof, was entitled to recover the value of the merchandize which the defendant sold and delivered to him, and afterwards converted to his own use.
But the plaintiff files his account, and in that account charges the defendant with a liability for twenty-five dollars on account of an accepted order from Messrs. Roche & Guy. The plaintiff appears to have mistaken, not merely the form of his action, but the real cause of action which he had, for, upon the proof, no liability for any accepted order was made out, though good and substantial ground of action was proved, growing out of the same transaction. Would it not be going further than the legislature ever contemplated, if a recovery in such eases were permitted P Is it not liable to mislead a defendant, and induce him to come prepared with proof on one subject, when the plaintiff means to hold him
Upon the whole, then, we are of opinion that the non-suit was properly entered.
Judgment affirmed.
The statement of the case being made by Judge Napton, I will only observe, that by the fourth clause of the first section of the second article of the act to establish justices’ courts, the justice is required to make on his docket a brief statement of the nature of the plaintiff’s demand; and that, to enable him to do this, the plaintiff is required, by the ninth section of the same article, to file a bill of items of his account; and that, unless this be done, the Circuit Court, on appeal, cannot carry into execution the sixteenth section of the eighth article of that act, which requires that the same cause of action, and no other, that was tried before the justice, shall be tried before the Circuit Court upon appeal.
Wathen, then, not having filed the items of his account, viz., the anvil, vice, and the three hammers, but having filed an account for the order of Roche & Guy on Farr, instead of the account for the vice, anvil, and hammers, which he had received for that order, the judgment of the Circuit court ought, in my opinion, to be affirmed.
