Ayers Plastics Co., Inc. v. Packaging Products Corp.

• Citation: 597 S.W.2d 177
• Decision Date: 31 December 1979
• Docket Number: No. KCD,KCD
• Parties: AYERS PLASTICS COMPANY, INC., Respondent, v. PACKAGING PRODUCTS CORPORATION, Appellant. 30232.
• Court: Court of Appeal of Missouri (US)

Page 177

597 S.W.2d 177

AYERS PLASTICS COMPANY, INC., Respondent, v. PACKAGING PRODUCTS CORPORATION, Appellant.

No. KCD 30232.

Missouri Court of Appeals, Western District.

Dec. 31, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 7, 1980.

Application to Transfer Denied May 13, 1980.

Joseph M. David, Jr. and Neal A. Gerstandt, Kansas City, for appellant.

Stephen G. Scholl, Kansas City, for respondent.

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

MANFORD, Judge.

This is an appeal from a judgment for monies claimed due for products furnished. Parties waived trial by jury.

There was no request for findings of fact or conclusions of law by either party. The trial court did, however, in the presence of counsel and upon the record, summarize the evidence. Review of this cause is made pursuant to Rule 73.01 as construed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

In the absence of findings of facts and conclusions of law, this court, while it makes its review upon both the facts and the law, is also bound by the rule enunciated in S. G. Adams Printing v. Central Hardware Co., 572 S.W.2d 625 (Mo.App.1978) wherein the court, in referring to Rule 73.01, at pages 627-628, declared:

"Additionally, we are not presented here with findings of facts or conclusions of law. Neither party requested these be made by the trial court. And when an appellate court is confronted with a record in which no findings of fact or conclusions of law were filed and none were requested, all fact issues are to be deemed found in accordance with the results reached. The judgment is to be affirmed under any reasonable theory supported by the evidence. DePaul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Company, 539 S.W.2d 542, 545(1) (Mo.App.1976). The appellate court is also obliged to accept as true the evidence and permissible inferences which may be drawn, favorable to the prevailing party, and to disregard the contradictory testimony."

It is within the purview of the foregoing sound principle that the facts of the cause herein are reviewed and disposition made herein.

Both parties are corporations possessed of standing in our courts. Appellant is engaged in the business of producing packaging products used normally in the packing of foodstuffs. Respondent corporation is the provider of plastic materials used by appellant in the production of the packaging materials. A lengthy dissertation of the facts is not necessary and it suffices to say the parties, over a period of time, transacted business for the sale and purchase of plastic materials. It also must be mentioned that defects in some of the materials were alleged by appellant from time to time and credits were made, adjusting the accounts.

To the thinking of respondent, appellant was long overdue in its payment for materials furnished by respondent. Respondent pressed appellant for payment, and this led to a meeting between two representatives of the respective corporations. This meeting, held in November, 1975, resulted in the tabulation of $19,323.77 in invoices. The parties agreed to adjusted credits totaling $2,233.17, bringing the adjusted agreed-to amount to $17,090.60. At this meeting, a memorandum was signed by appellant's representative. This memorandum, which became respondent's (plaintiff's upon trial) Exhibit no. 6, provided the following information:

                "Invoices                     17576
                                              17682
                                              17619
                                              17622
                                              17478
                to be paid immediately total             $ 8,968.26
                Balance due to be paid 'by
                year end' (either in one or                8,122.34
                more payts.)                              ---------
                                                          17,090.60
                                              /s/ Jack L. Joslin"
                

Subsequent to the above meeting, appellant forwarded its check in the sum of $15,063.43. Accompanying this check was a letter claiming additional credits for defective materials. The record fails to show any evidence that this claim for additional credits was for materials other than those materials subject to the meeting of November and Exhibit no. 6. Prior to and after payment, there was no evidence the parties ever discussed additional credits to be claimed or granted. The above-referred-to check contained a restrictive endorsement upon the reverse side, which read, "Endorsement of this check constitutes a release by the payee of all liability of the maker to the payee." Respondent received the check and the letter. The check was negotiated. Demand for the $2,027.17 was made upon appellant and upon appellant's refusal to pay, respondent filed this action. The trial court found for respondent in the amount claimed ($2,027.17). This appeal followed.

On appeal, three points of error are alleged. These errors include the trial court's admission of Exhibit no. 6, even if the admission of this exhibit was proper, the problem of insufficient evidence to support there was an account stated and finally, the trial court's finding that respondent's acceptance of appellant's check did not create an accord and satisfaction precluding respondent from securing any additional payment.

Appellant first contends the admission of Exhibit no. 6 was error.

In addition to appellant's contention that Exhibit no. 6 was not properly admitted, appellant contends even if proper, in the alternative, there was insufficient evidence to establish an account stated.

It is obvious from the record that respondent's petition was on an open account. The evidence supported an account stated. Exhibit no. 6 was admissible as an admission of correctness. An open account may be proven by evidence of an account stated.

The appellant is incorrect in his argument that one theory of relief was pleaded and recovery was had upon another theory. The trial court did not declare specifically that the judgment was predicated upon an account stated.

That such evidence of an account stated is admissible to prove an open account, see Friedman, Keller & Co. v. Olson, 187 Mo.App. 469, 173 S.W. 28 (1915); Welch-Sandler Cement Co. Inc. v. Mullins, 31 S.W.2d 86 (Mo.App.1930). See also 1 C.J.S. Account, Action On § 16 (1936) and 1 C.J. Accounts and Accounting, § 187 (1914), citing authority from other jurisdictions, Rice v. Schloss, 90 Ala. 416, 7 So. 802 (1890) and Bonnell v. Mawha, 37 N.J.L. 198 (1874).

In addition to Exhibit no. 6, which was properly admitted, the evidence shows the parties in the November, 1975 meeting had come to terms on the sum claimed due and the sum owed. This is best shown by testimony of appellant's witness. When questioned by the court, he testified:

"Q. (by the court) Was it your intention, then, if it had been, let's say, possible for your employer to pay the total sum of $17,090.60, that that would satisfy the total amount of the invoices submitted to you by Ayers Plastics Company, Inc.?

A. Yes, sir."

There followed further questions and answers between the court and the witness regarding the figures and mode of payment reflected in Exhibit no. 6.

This court cannot agree that the admission of Exhibit no. 6 was improper. It went to the precise question of whether the parties had agreed on the sum due and owing. It went to the proof of what the net result of the November, 1975 meeting was as between the parties. Whether this exhibit is viewed as admissible upon the question of its materiality, relevancy or probative value or whether it was held to be admissible as a statement against the interest of the appellant, it was improperly admissible.

As to the matter of insufficiency of the evidence on the question of account stated, the record quickly dispels appellant's contention on this point. Appellant's own witness verified, in response to the court's inquiry, that the parties had come to an agreement on the total sum claimed due and owing.

Points one and two are ruled against appellant.

The final point of error alleged by appellant is that payment by appellant of a sum less than that claimed constituted an accord and satisfaction.

After the November, 1975 meeting, during which an agreement was reached on the sum due ($17,090.60), the parties had no further contact until respondent received a check in the sum of $15,063.43 with a restrictive endorsement and a letter claiming additional credits in the sum of $2,027.17. The evidence shows that respondent did nothing but negotiate the check and make demand for the remaining $2,027.17. Appellant contends the acceptance of the check and its negotiation amounted to an accord and satisfaction. Appellant's contention cannot stand the test applicable to the requirements of an accord and satisfaction.

The original or the agreed-to amount of indebtedness was $17,090.60, established in the November, 1975 meeting. For payment of something less than the amount due to result in an accord and satisfaction, there must be more than mere payment of a...