B. F. Coombs & Bro. Commission Co. v. Block

• Decision Date: 26 November 1895
• Citation: 32 S.W. 1139,130 Mo. 668
• Court: Missouri Supreme Court
• Parties: B. F. COOMBS & BRO. COMMISSION CO. v. BLOCK.

32 S.W. 1139

130 Mo. 668

B. F. COOMBS & BRO. COMMISSION CO. v. BLOCK.

Supreme Court of Missouri, Division No. 1.

November 26, 1895.

PLEA IN ABATEMENT — WAIVER — JURY — SUMMONING — ACTION ON ACCOUNT — PLEADING — EXHIBITS — DEPARTURE — TRIAL — INSTRUCTIONS — RIGHT TO OPEN AND CLOSE.

1. In an action aided by attachment, a plea in abatement of the attachment is not waived by the subsequent filing of an answer to the merits of the action.

2. Laws 1891, p. 172, regulating the summoning of petit jurors in Jackson county, is constitutional.

3. In an action aided by attachment, the fact that a plea in abatement of the attachment was erroneously overruled is not ground for reversal of the whole case, judgment having been subsequently rendered against defendant on the merits, where the issues on the two branches of the case were different, and no error appears in the proceedings on the merits.

4. By express provision of Rev. St. 1889, § 2075, a pleading in an action on an account need not contain the items, but a copy of the account attached to the pleading, and properly referred to therein, is sufficient.

5. In an action on an account, where defendant set up another portion of the account as a counterclaim, an admission by plaintiff of the correctness of defendant's account, accompanied with a demand for additional credits thereon, does not render such account an account stated.

6. New matter in a reply will not constitute a departure when set up in response to defendant's counterclaim.

7. In an action for the price of goods involving an account, where defendant set up another portion of the account as a counterclaim, and plaintiff claimed credits on defendant's account not disclosed by defendant, it is immaterial whether such credits arose from express or implied contracts.

8. In an action for the price of goods involving an account where defendant set up a counterclaim for goods delivered to plaintiff

under the account, and there was evidence that part of such goods were defective, and that, after claim therefor and a settlement between the parties, defendant promised to pay the amount found due under the settlement, a request to charge that, if plaintiff accepted and sold the goods without objection or notice to defendant, he was not entitled to any rebate, was properly modified by adding "unless, on claim therefor on defendant by plaintiff," etc., defendant promised to pay the rebate.

9. Where goods are sold with a representation of good quality, and, on complaint as to quality by customers of the buyer to whom the goods were shipped without inspection, the seller agreed to make allowance therefor by credit on the account, the agreement for credits was based on valuable consideration.

10. Where evidence, the effect of which is patent, is allowed by a party to go in without objection, a subsequent request by him for a charge ruling it out was properly denied.

11. In an action for the price of goods involving an account, where defendant admitted the truth of plaintiff's account, but set up another portion of the account as a counterclaim, and plaintiff, in his reply, admitted defendant's account, but claimed credits thereon not disclosed by defendant, there was no abuse of discretion in allowing plaintiff to open and close the case.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by B. F. Coombs & Bro. Commission Company against M. Block for the price of goods sold and delivered. Judgment for plaintiff, and defendant appeals. Reversed.

Frank Titus, for appellant. J. B. Hamner, for respondent.

BARCLAY, J.

Plaintiff sued for the price of two car loads of potatoes sold to defendant. The petition stated the particulars of the sale, and that defendant was hence indebted to plaintiff in the sum of $363.23, as appeared by an itemized account attached. It gave defendant credit for $36.57, and asked judgment for the balance, namely, $326.66. The answer denied the allegations of the petition, and set up a counterclaim for a large lot of barrels of apples, sold at various times to plaintiff, and not fully paid for, as appeared from an account filed therewith. In that account plaintiff was given certain credits, leaving an alleged balance of $282.50, claimed by defendant, for which, with interest, he asked judgment.

As there is some question as to the effect of the reply on the rulings discussed, we quote that pleading in full, omitting only caption and signature. "Now comes plaintiff, and admits that he bought the goods from defendant set out in his account and counterclaim, and paid the amount credited on said account, and paid the additional amounts as set out in an account hereto attached, marked `Exhibit B,' and was allowed certain other credits thereon, as set out in said Exhibit B, all of which said defendant ordered, agreed to, and accepted; and at the time defendant bought said two cars of potatoes, as alleged in plaintiff's petition, it was owing defendant only $36.52, as will appear by said Exhibit B, and which amount was and is credited to defendant in plaintiff's petition on said potatoes. Wherefore plaintiff asks judgment as prayed in its petition."

Accompanying the reply is an account beginning thus: "M. Block & Co., in account with B. F. Coombs & Bro. Com. Co." Then follows a long list of credits and debits, many items of which correspond with the defendant's apple account, contained in the exhibit to his answer. The duplicated items need not be recited. Those not duplicated are as follows:

                  1890.           Credit
                Oct. 11.   By empty barrels................ $ 3 35
                                 * * * * *
                Dec. 18.   By allowance....................  51 05
                                   Debit
                                 * * * * *
                Oct.  9.   To help packing.................  10 75
                 "   20.   To allowance on Shaffer &amp
                            Co. car apples.................  42 00
                 "   23.   To allowance J. Nix.............  18 05
                 "   27.   To telegram.....................     35
                Nov. 18.   To allowance on Cady &amp
                            Visibush car apples............  40 00
                 "   18.   To 2 bbl. apples short..........   5 00
                 "   20.   To cash, telegrams..............   4 10
                 1891
                Mar. 31.   To cash paid P. Gleason......... 120 00
                 "   31.   To cash paid P. Gleason ........  71 62
                                                           _______
                               Bal. ...................... $ 36 57
                

At the outset of the action, plaintiff obtained a writ of attachment against the defendant's property, upon the usual affidavit and bond therefor. On the first day of the return term of the writ, defendant filed a statutory plea in abatement of the attachment. Two days later he filed the answer already mentioned. Plaintiff moved to strike out the defendant's plea, on the ground that, by answering to the merits, defendant waived the plea to the attachment. The court sustained that motion. The cause of action was then tried, and plaintiff got judgment, from which defendant appealed, after the usual steps. Before the trial, defendant objected to the panel of jurors, on the theory that the act of 1891 (Laws 1891, p. 172), under which it was summoned, was unconstitutional.

The above is a sufficient sketch of the case for the purposes of this appeal, though we may add some minor facts in dealing with certain points of practice discussed.

1. Is a statutory plea, denying the grounds of attachment, waived by an answer to the merits? The trial court answered in the affirmative. If the matter in abatement was directed at the action itself (as, for example, a plea to jurisdiction over the person), it might be separately pleaded in an answer, without thereby waiving an accompanying plea to the merits. That rule is firmly established now by decisions in Missouri (Little v. Harrington [1880] 71 Mo. 390; Byler v. Jones [1883] 79 Mo. 261; Christian v. Williams [1892] 111 Mo. 429, 20 S. W. 96), although a different doctrine, suggested by the principles of an older system of pleading, has been at times approved (Rippstein v. Insurance Co. [1874] 57 Mo. 86; Moody v. Deutsch [1884] 85 Mo. 237). Is there any sound distinction or difference observable, in this regard, between actions begun by ordinary summons and those having an attachment feature? Is there not rather stronger reason to apply the principle declared in Little v. Harrington (1880) 71 Mo. 390, to statutory pleas in abatement of an attachment, than to ordinary actions? For, in the latter, a plea in abatement in an answer, if sustained, may cause the dismissal of the whole case, while that result does not follow the sustaining of a plea intended to get rid of an attachment. When the latter is sustained, the action proceeds "as if it had been commenced by summons only." Rev. St. 1889, § 569; and Id. § 562, as amended (Laws 1891, p. 45). Abating an attachment, therefore, has less bearing on the other issues in the case than a successful plea in abatement in an ordinary answer, along with a plea to the merits. The so-called "statutory plea" to the attachment is not strictly a plea in abatement. It is called by the law "a plea in the nature of a plea in abatement." Rev. St. 1889, § 561. Though it is usually denominated, for the sake of brevity, a "plea in abatement," it is no longer even a plea in abatement of the action. It is only a plea to abate the attachment, and the attachment is merely ancillary to the cause of action presented by the petition. Stutzner v. Printz (Neb.; 1895) 61 N. W. 620. A case begun by attachment possesses a dual character. The truth of the facts charged in the affidavit for attachment, if denied by the statutory plea, forms a distinct issue for trial. There is no inconsistence between a traverse of those facts and a denial of or other defense to the allegations of the petition.

We are not unmindful that the views above given are not in harmony with some earlier decisions (for instance: Fugate v. Glasscock [1842] 7 Mo. 577; Hatry v. Shuman [1850] 13 Mo. 547; Cannon v. McManus [1852...