Big Four Implement Co v. Chesney
| Citation | 223 S.W. 944,204 Mo. App. 285 |
| Decision Date | 26 June 1920 |
| Docket Number | No. 13634.,13634. |
| Parties | BIG FOUR IMPLEMENT CO. v. CHESNEY (CHESNEY, Interpleader). |
| Court | Court of Appeal of Missouri (US) |
Action by the Big Four Implement Company against Frank O. Chesney, in which Lela D. Chesney was interpleaded. There was a judgment for plaintiff, and defendant brings error. Affirmed.
Jay L. Oldham, of Kansas City, for plaintiff in error.
Samuel Feller, of Kansas City, for defendant in error.
This suit was commenced on October 11, 1913, by plaintiff filing a petition on an open account for goods, wares, and merchandise sold to defendant at various dates between January 1, 1913, and April 1, 1913, of the agreed price of $907.37. On October 17, 1913, the account was settled by defendant paying to plaintiff $200 in cash and the giving of three notes for the balance, due in 30, 60, and 90 days. Service was had upon the defendant on February 14, 1914, and on that day answer was filed. The answer contained no general denial. In fact, it contained nothing further than a statement of the settlement and that the notes mentioned were "accepted as full settlement of said claim." On March 16, 1918, plaintiff replied to defendant's answer, admitting the receipt of $200 as payment upon the account, and stating that "plaintiff hereby waives all of its rights under said notes, and herein tenders the same in court for cancellation." The case went to trial on May 13, 1918.
The evidence shows that defendant made the settlement in Phoenix, Ariz., with plaintiff's attorneys there. Defendant testified that he paid the $200 and gave the notes to plaintiff's attorney, who said that he accepted the cash and notes in full settlement of the account. Defendant admitted that he had never paid the notes. The court refused to give defendant's instruction in the nature of a demurrer to the evidence, judgment went for plaintiff, and the case has been brought here by writ of error.
It is claimed that the evidence shows there was a fatal variance between the pleadings and the proof, in that the petition charges an action upon an open account, while recovery was had upon an account stated, or a settlement. We think there is nothing in this contention. The payment of the $200 was merely a cash payment made upon the account; the giving of the notes did not operate to extinguish the indebtedness, as there was no express agreement that they should constitute payment. As was stated in McCormack Harvesting Mach. Co. v. Blair, 146 Mo. App. 374, 379, 380 124 S.W. 49, 50:
"* * * The giving of the note in such circumstances suspends the right to sue upon the indebtedness during the time the note has to run, and it is treated as a payment thereof to the extent that the party to whom the note has been given cannot recover upon the original cause of action without producing the note on the trial for cancellation or properly accounting for its nonproduction; but in the absence of an express agreement to that effect, the note does not operate to extinguish the indebtedness."
The rule laid down in that case is sustained by ample authority in this state. Holland v. Rongey, 168 Mo. 16, 67 S. W. 568 McMurray v. Taylor, 30 Mo. 263, 77 Am. Dec. 611; Barton Lumber Co. v. Gibson, 178 Mo. App. 699, 161 S. W. 357. We do not think that, on account of the facts showing that the parties agreed upon the amount sued for in the petition as being the proper amount due, and for that reason the account became an account stated, plaintiff is prevented from recovering upon a petition charging an open account. When the debtor acknowledges and promises to pay an account rendered him by the creditor, the account becomes a stated account; but it does not prohibit the creditor from disregarding or waiving the statement of account, and from maintaining his action upon the original items. 1 C. J. 707; 1 R. C. L. p. 219; 1 Cyc. 389; Cross v. Moore, 23 Vt. 482; Porter v. C. I. & D. Ry. Co., 99 Iowa, 351, 355, 68 N. W. 724; Buxton v. Edwards, 134 Mass. 567. Where one accepts in liquidation, but not payment, of an open account, a negotiable promissory note, he can recover in a suit upon the original cause of action, where he...
To continue reading
Request your trial