Bader v. Ferguson

• Decision Date: 10 April 1906
• Citation: 94 S.W. 836,118 Mo. App. 34
• Parties: BADER v. FERGUSON.
• Court: Missouri Court of Appeals

94 S.W. 836

118 Mo. App. 34

BADER v. FERGUSON.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

1. ACCOUNT, ACTION ON—EVIDENCE—SUFFICIENCY.

In an action on account, evidence held to sustain a finding that the account sued on was against the defendant and not against her husband.

2. APPEAL—HARMLESS ERROR—FINDINGS FAVORABLE TO APPELLANT.

In an action on account, findings favorable to defendant on disputed claims were not prejudicial to her.

3. EVIDENCE—BOOKS OF ACCOUNTS.

In an action on account for goods sold and delivered, an entry in a book of accounts, of plaintiff's decedent debiting defendant for a note, where unexplained by the testimony, was improperly allowed, being too detached from the ordinary business between merchant and customer to be admissible.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by John W. Bader, administrator of the estate of W. H. Huffman, against M. M. Ferguson. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition.

Brewen & Collins, for appellant. S. J. Corbett and L. B. Hawkins, for respondent.

GOODE, J.

This action is on an account for goods sold and delivered by W. H. Huffman, deceased, to defendant. Plaintiff Bader is the administrator of the Huffman estate. Huffman conducted a mercantile business in the town of Caruthersville, Mo., during his life, and defendant dealt with him. The account contained in the transcript extends over the interval from January 2, 1893, to April 1, 1901, and the balance claimed to be due is $705.77. An account between the parties had been running through some years previous, as appears from the fact that the one before us opens with a balance carried over from the years 1891 and 1892, and from the referee's report, in which four items dated May 27, 1890, are noticed. We know not why the account in the transcript fails to show those items. The cause was referred to C. G. Shepard, who reported in favor of judgment for plaintiff for $444.46. Exceptions were filed by defendant to this report, but they were overruled, judgment entered in accordance with the report, and defendant appealed.

The case is in all respects like the one of Bader, Adm'r, v. H. C. Schult et al. (Mo. App.) 94 S. W. 834. The two causes were brought to the same term of court, were referred to the same referee, and the evidence in both taken at the same time. The attorneys agreed that the evidence in the Schult Case should be considered in this one as far as it was relevant and competent. It is assigned for error that the court admitted in evidence the account books of the deceased; there being no evidence to show that the entries were contemporaneous with the transactions to which they referred. There was ample evidence on that subject, as we held in the other case. The evidence on the question was the same in this case and proved the entries to have been original and made at the dates of the sales.

It is further objected that the account sued on was against defendant's husband and not against her, and certain entries in the account are said to support this contention. For instance, one like this: "Nov. 3, 1893. To Mchdse by wife. $0.80." Also a credit of $41.25 allowed defendant for salt received from her husband. This account extended over years and stood on Huffman's book in the name of the defendant, and not in her husband's name. Mr. Ferguson's testimony went to show that during that period, with his wife's knowledge and consent, he gave orders and signed checks in her name frequently and acted as her general agent. On his own testimony and other evidence in the case, the referee found that defendant allowed her husband to buy goods of Huffman and have...