Bader v. Schult

• Decision Date: 10 April 1906
• Parties: BADER v. SCHULT et al.
• Court: Missouri Court of Appeals

94 S.W. 834

118 Mo. App. 22

BADER v. SCHULT et al.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

1. REFERENCE — TIME OF MAKING ORDER— WAIVER OF IRREGULARITIES.

The irregularity of referring an action on account, before the answer came in, was waived by failure to object, and by the appearance of the parties at the hearing before the referee.

2. EVIDENCE—DOCUMENTS—ACTIONS OF ACCOUNT.

In an action on an account, evidence held to show that entries were made contemporaneously with the transactions referred to so as to justify their admission in evidence.

3. PLEADING—NECESSITY OF ANSWER—FAILURE TO MAKE TIMELY OBJECTION.

In an action on an account, where the defendant was given till the next term to file an answer, but the cause was referred, without objection by either party, and a hearing ordered by the referee, the plaintiff introduced his evidence, and objected to the introduction of the evidence by the defendant because no answer had been filed, admission of the evidence was not ground for reversal, where the nature of the intended answer, subsequently filed, being a general denial and a demand for allowance of further credits, was stated at the time of the objection, and a list of the credits demanded was given to plaintiff, and there was no showing that any injustice resulted to the plaintiff, and where he could have had a reasonable time before the referee to rebut the credits claimed by defendant, but asked none.

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

Action by J. W. Bader, administrator of the estate of W. H. Huffman, against H. C. Schult and others. From the judgment, both parties appeal. Affirmed.

Roberts & Corbett, for plaintiff. Brewer & Collins, for defendants.

GOODE, J.

Plaintiff is the administrator of the estate of W. H. Huffman, deceased. Huffman in his lifetime conducted a mercantile establishment in Carruthersville, Mo., and the present action is on an account for goods sold and delivered by him to defendants, who are partners. The account is for general merchandise; the items ranging over a period from October 31, 1893, to January 27, 1900, about seven years. The account was continuous during all that time; payments having been made at different dates, but without a complete settlement. At the return term of the cause the court granted defendants until the first day of the next term to file their answer. Notwithstanding this fact, the court referred the cause to C. G. Shepard for an "adjudicating and accounting," with a direction to report at the next term. Neither party objected to the reference, and the case was one which might properly have been referred after the issues had been made up, if an objection had been made. The irregularity of referring it before the answer came in was waived by failure to object and by the subsequent conduct of the parties. Keystone. etc., Co. v. Worth, 117 N. C. 515, 23 S. E. 438. On April 11, 1903, the referee notified the parties in writing that he would proceed to the hearing of the cause on the 27th instant, and on that day both parties appeared with their counsel and proceeded with the hearing. Plaintiff introduced testimony in support of his case and to establish the different items of the account, which were gone into with much detail. When plaintiff rested and defendants undertook to put in testimony, plaintiff's counsel, for the first time, objected "to the introduction of testimony on the part of the defendants for the reason that no answer had been filed," and plaintiff was not apprised of the issues he had to meet. Thereupon defendants stated that the answer would be a general denial with a demand for allowance of certain credits, which they asserted had not been given on the account filed with the petition. Plaintiff was handed a list of these credits. The referee overruled the objection and proceeded with the hearing. The testimony mainly relied on to establish plaintiff's demand consisted of entries contained in the books of account used by the deceased in his business, showing merchandise sold and delivered to defendants and payments made. The credits defendants asserted they were entitled to, but had not received, were principally sums of rent which had fallen due to defendants from tenants of their lands, and which said tenants, by arrangement with defendants, had paid to Hoffman at different times, with the understanding that he was to credit defendants on the books with sums thus received. A debit item of about $200 on plaintiff's account against defendants was resisted as having been improperly charged to defendants, when it should have been charged to Stephen Way, and this contention was resolved in favor of the defendants. Still another charge, said by defendants to be improper, was one of $400, dated January 10, 1894. The contention of defendants as to that item did not prevail. The only credit allowed which had not been allowed on Huffman's books was one for $34.60 for rent-corn...