Adam Roth Grocery Co. v. Hotel Monticello Co.

• Decision Date: 05 May 1914
• Docket Number: No. 13,635.,13,635.
• Citation: 166 S.W. 1125,183 Mo. App. 429
• Parties: ADAM ROTH GROCERY CO. v. HOTEL MONTICELLO CO.
• Court: Missouri Court of Appeals

166 S.W. 1125

183 Mo. App. 429

ADAM ROTH GROCERY CO. v. HOTEL MONTICELLO CO.

No. 13,635.

St. Louis Court of Appeals. Missouri.

May 5, 1914.

Rehearing Denied May 21, 1914.

1. APPEAL AND ERROR (§ 877)—REVIEW—QUESTIONS PRESENTED.

On defendant's appeal from an order granting plaintiff a new trial on the ground of newly discovered evidence, the appellate court will not review the action of the trial court in denying plaintiff's motion on the ground of surprise; the decision being against plaintiff, who did not appeal, and depending on a question of fact.

2. ACCOUNT STATED (§ 1)— WHAT CONSTITUTES.

An account stated is the settlement of an account between the parties, with the balance struck in favor of one of them, upon the debtor or his agent admitting to the creditor or his agent the latter's right to payment of the balance.

3. ACCOUNT STATED (§ 20)—ACTION ON—JURY QUESTION.

In an action on an account stated, where the facts are undisputed, the question whether they constitute an account stated is for the court.

4. ACCOUNT STATED (§ 5)—PROOF OF ACCOUNT STATED.

Entries in a debtor's books will not alone constitute an account stated.

5. NEW TRIAL (§ 99)—NEWLY DISCOVERED EVIDENCE—GROUNDS.

Newly discovered evidence, warranting a new trial, is evidence which, by the use of proper diligence, a party could not have discovered prior to trial, and which is material to the issue, and not merely cumulative or impeaching.

6. NEW TRIAL (§ 102) — GROUNDS — NEWLY DISCOVERED EVIDENCE—DILIGENCE.

In an action on an account stated, brought in 1911, where the complaint alleged that the account was due in 1908, plaintiff, having been defeated, was not entitled to a new trial, on the ground of newly discovered evidence, consisting of evidence that in 1907 defendant executed a deed of trust for the benefit of its creditors, which named plaintiff as a creditor, that the trustee thereunder approved plaintiff's claim, and that defendant's books, which were in the trustee's possession, showed the account was stated, for plaintiff must have had notice of the deed of trust, and by reasonable diligence could have procured this evidence before trial; the fact that defendant's books were in the possession of the trustee not amounting to any concealment.

7. NEW TRIAL (§ 104)—NEWLY DISCOVERED EVIDENCE—CUMULATIVE.

This evidence was merely cumulative, and did not warrant a new trial, particularly as the claim approved was a few dollars in excess of that in suit, so as to destroy the identity of the two claims.

8. APPEAL AND ERROR (§ 854)—REVIEW—NEW TRIAL.

Where the trial court granted a new trial solely on the ground of newly discovered evidence, and refused it on the ground that the verdict was against the weight of the evidence, the appellate court cannot, to sustain the order granting the new trial, weigh the evidence to determine whether the lower court's order could be upheld on the latter ground, it appearing that it was improvidently granted on the ground assigned; for, while the appellate court is not confined to the ground stated by the lower court, it cannot weigh the evidence.

9. APPEAL AND ERROR (§ 987)—REVIEW—WEIGHT OF EVIDENCE.

The appellate court cannot weigh the evidence.

10. APPEAL AND ERROR (§ 977)—REVIEW—NEW TRIAL.

While the appellate court will pay great deference to the granting of a new trial by the lower court, that tribunal's order is not conclusive.

11. NEW TRIAL (§ 99)—NEWLY DISCOVERED EVIDENCE.

Motions for new trial on the ground of newly discovered evidence should be construed with strictness, and granted only as an exception.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by the Adam Roth Grocery Company against the Hotel Monticello Company. From an order granting plaintiff a new trial, defendant appeals. Order reversed and cause remanded, with directions.

John H. Boogher, of St. Louis, for appellant. L. Frank Ottofy, of St. Louis, for respondent.

REYNOLDS, P. J.

On the 22d of July, 1911, plaintiff commenced its action against defendant, both parties corporations.

The petition is in three counts. The first count avers that on March 2, 1908, defendant was indebted to plaintiff in the sum of $576.89, "for the money then found to be due by said defendant to plaintiff, and by them both agreed to, upon an account stated between them, which said sum the said defendant then and there promised to pay, but that said sum is still due and wholly unpaid." Judgment is asked for this with interest from March 2, 1908.

The second and third counts are on notes.

A general denial interposed, the cause was tried by the court, a jury being waived. Upon the conclusion of the trial the court gave a declaration of law to the effect "that an account stated is an account settled between the debtor and creditor therein, in which a sum of money or a balance is agreed on and an acknowledgment by one in favor of the other of a balance or sum certain to be due and an express or implied promise to pay the same by one to the other; and the plaintiff in this cause having sued and declared in the first count of its petition, not upon an itemized account, but upon an alleged account stated, the court cannot find for plaintiff herein on said count unless the plaintiff has by the greater weight of the evidence proven an account stated between plaintiff and defendant," and the finding on this was for defendant.

The finding was for plaintiff on the other two counts, based upon the notes.

Both parties filed motions for a new trial. That of defendant was overruled; that of plaintiff was sustained by the court on the ninth ground stated in its motion. That ninth ground is to the effect that since the trial plaintiff has discovered new evidence consisting of entries in the books of defendant, showing that the account was stated between the parties and that plaintiff is entitled to recover on the first count, which new evidence, it is alleged, plaintiff could not have heretofore produced "because the same was in the custody of the defendant's trustee," the trustee a Mr. J. W. Taylor. Another allegation in this ninth ground is that since the trial, plaintiff has discovered that in "a chattel deed of trust," made and executed by defendant on February 19, 1908, for the benefit of his creditors, the total amount of the indebtedness admitted by defendant as due plaintiff was the sum of $1,580.91, "a part of which consisted of one note, which has since been paid, the balance consisting of the three counts set forth in the petition in this case." The third allegation in this same ninth ground is, that plaintiff has discovered since the trial "that the trustee of the defendant, J. William Taylor, did on the 8th day of May, 1908, allow the plaintiff's claims in the total sum of $1,201.76, being the item sued on in the three counts of this case, which was done with the consent and acquiescence of the defendant and its officers and agents."

This ninth assignment or ground concludes with the statement, "that all of said evidence has come to the knowledge of the plaintiff since the trial of this cause and it was not owing to want of due diligence that the said evidence did not come to its knowledge sooner."

Among the other grounds for a new trial is the tenth, to the effect that plaintiff and its counsel were surprised by the testimony of John H. Boogher, to the effect that the account had not been stated, "because the said Boogher had heretofore admitted to the plaintiff and its counsel that the said indebtedness was due and had led counsel to believe that he would not contest the case, as the defendant was insolvent and the only way plaintiff could recover was to pursue the said Boogher and the other stockholders for amounts due by them for unpaid subscriptions for the capital stock of the said defendant company."

Excepting to the action of the court in sustaining the motion, which it did solely on the ninth ground above, and in granting a new trial on that count, but holding the finding as to the other two counts in abeyance until the final determination of the cause, defendant has duly perfected its appeal to our court.

We have set out the tenth ground stated in the motion for new trial, namely, surprise, merely because the learned counsel for respondent argues that proposition before us in support of the action of the trial...