Barton Lumber Company v. Gibson
| Decision Date | 02 December 1913 |
| Parties | BARTON LUMBER COMPANY, Respondent, v. PETER B. GIBSON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court--Hon. William M. Kinsey Judge.
REVERSED AND REMANDED.
Bishop & Cobbs for appellant.
(1) The statement filed before the justice of the peace was not sufficient. Secs. 7412, 7413, R. S. 1909; Rechnitzer v Vogelsang, 117 Mo.App. 148; Broughton v Railway, 25 Mo.App. 10. (2) Where a party gives his own note for his own debt, and it is expressly stipulated between the holder of the note and the payer that it is to be in satisfaction of the debt, it is an accord and satisfaction of the original cause of action. Holland v. Rongey, 168 Mo. 16; Charlotte v. Lumm, 9 Mo. 63.
Johnson Rutledge & Lashly and Robert L. Ailworth for respondent.
(1) No exception was saved by appellant in the trial court as to the sufficiency of plaintiff's statement; no motion was made and no objection to the introduction of evidence under it. Appellant's point one is waived. Finley v. Dyer, 79 Mo.App. 604; Dawson v. Quillen, 61 Mo.App. 672; Redel v. Mo. Valley Stone Co., 126 Mo.App. 163; Hammond v. Berkowitz, 139 Mo.App. 404; McDermot v. Claas, 104 Mo. 14; Gfeller v. Graefmann, 64 Mo.App. 162; Meyer v. Chambers, 68 Mo. 626; Keyes & Watkins v. Freber, 102 Mo.App. 315. (2) The statement of facts constituting the plaintiff's cause of action, filed with the justice in this case, is sufficient. Moore v. Harmes, 123 Mo.App. 34; Redel v. Mo. Valley Stone Co., 126 Mo.App. 163; Cardwell v. Connor, 142 Mo.App. 14; Fixture Co. v. Baseball Co., 152 Mo.App. 601; Hall v. Taylor, 140 Mo.App. 692; Lustig v. Cohen, 44 Mo.App. 271; Hall v. Railroad, 124 Mo.App. 661; Weese v. Brown, 79 Mo.App. 604; Meyer v. McCabe, 73 Mo. 236. (3) So far as the record discloses, Exhibit A was filed in the justice court; even if it was not filed at all it was no part of the plaintiff's petition or statement--it was merely evidence of facts admitted by appellant. Curry v. Lackey, 35 Mo. 389; Bowling v. McFarland, 38 Mo. 465; Merrill v. Central Trust Co., 46 Mo.App. 236; Emmert v. Meyer, 15 Mo.App. 609; Baker v. Berry, 37 Mo. 306; Paulson v. Collier, 18 Mo.App. 583; State v. Samuels, 28 Mo.App. 649. (4) The giving of a promissory note for a pre-existing debt does not operate to extinguish the indebtedness for which the note is given without a special or express contract to that effect. The record in this cause shows no such agreement. McCormack Co. v. Blair, 146 Mo.App. 374; Book Co. v. Corbett, 162 Mo.App. 72; Holland v. Rongey, 168 Mo. 16; Steamboat v. Lumm, 9 Mo. 64; McMurray v. Taylor, 30 Mo. 263; Chorn v. Zollinger, 143 Mo.App. 191; Berkshire v. Hoover, 92 Mo.App. 349; Doebling v. Loos, 45 Mo. 150; Bertiaux v. Dillon, 20 Mo.App. 602; Sturdevant Bank v. Peterman, 21 Mo.App. 512. (5) Appellant is estopped from claiming that the note in question extinguished the debt, by his agreements, admissions in court and position in the whole case. "We owe either the note or the account," was his position at the trial. After sending the note in question he admitted by word and conduct the existence of the account as a valid obligation, and made an agreement that judgment might be taken on it if the note was cancelled. He cannot now be heard to assert that the account has been extinguished. (6) It appears that substantial justice has been done by the judgment of the trial court, and so the judgment should not be reversed. R. S. 1909, Secs. 2082, 1850; Hanley v. Holton, 120 Mo.App. 393; Crass v. Gould, 131 Mo.App. 585; McDermott v. Class, 194 Mo. 14; Stumpe v. Kapp, 201 Mo. 412; Mann v. Doerr, 222 Mo. 1.
This is an action to recover $ 496.72, being the sale price of certain lumber sold and delivered by plaintiff to defendant. The suit was begun before a justice of the peace. Plaintiff had judgment, and the defendant appealed to the circuit court, where the cause was tried before the court alone, a jury having been waived, resulting again in a judgment for plaintiff, from which defendant prosecutes this appeal.
1. A statement was filed with the justice of the peace, setting up briefly plaintiff's cause of action, and referring to an itemized statement stated to be thereto annexed and marked "Exhibit A." The latter is not preserved in the record. At the trial in the circuit court, it developed that it was not among the papers certified by the justice; plaintiff's counsel stating, in response to a query by the court: "The justice's transcript has left it behind; it is not here." In lieu thereof, however, plaintiff caused to be identified and introduced in evidence a paper shown to have been prepared by defendant and sent to plaintiff as and for a statement of the account. The latter showed that the claim was for two carloads of lumber, giving the car numbers, and for which, after deducting certain charges and allowances, a balance of $ 496.72 was shown to be due plaintiff.
One point raised by appellant pertains to the sufficiency of the statement filed before the justice. This is upon the ground that the record does not show that "a bill of items of the account" was filed, in compliance with section 7413, Revised Statutes 1909. But this point we think is not well taken. There was sufficient before the justice of the peace to give him jurisdiction of the cause, and if the defendant wished to avail himself of the failure on the part of plaintiff to file the bill of items of the account, if there was any such failure, he should have interposed a timely motion or objection in the circuit court. In this particular a defendant may waive his right to insist upon the filing of an account even in a suit begun in the circuit court, as required by section 1832, Revised Statutes 1909. [See Schneider v. Johnson, 164 Mo.App. 639, 147 S.W. 538.]
Here the statement filed before the justice referred to an account alleged to have been thereto annexed and filed with the justice. At the trial in the circuit court it was not contended by defendant that such account had not been in fact filed, and no point respecting the same was made. No motion was made or objection interposed on this score. On the contrary the account which plaintiff introduced in evidence appears to have been treated by the court and by both parties as having been substituted for the original account referred to in the statement on file and therein alleged to have been annexed thereto. It was upon this theory that the case was tried below, and appellant did not in any manner complain thereof except in his motions for a new trial and in arrest. Such being the case we think that appellant is now in no position to urge any error in this regard as ground for a reversal in this court.
II. The only defense interposed below pertains to a note shown to have been executed by the defendant to the plaintiff for the amount of the indebtedness on account of the sale of the lumber in question. The record discloses that this note was dated September 21, 1910, and was for the amount of the account sued upon, and payable on or before sixty days after that date. It was mailed to plaintiff with the request that the latter accept it in settlement of the account. Plaintiff received it on September 24, 1910, accepted and retained it. Upon presentation of the note to defendant at its maturity, payment thereof was refused; and plaintiff thereupon caused the note to be protested. This action, however, had in the meantime been begun, on September 27, 1910, by a representative of the plaintiff; it appearing that this step was taken without the knowledge of the plaintiff at the time, but in the course of the business of plaintiff's representative, who was acting for it.
It appears that the suit was continued from time to time in the justice court, and that counsel for plaintiff and defendant, respectively, came to an understanding whereby it was agreed that the suit might proceed to judgment before the justice of the peace upon the account, provided plaintiff's counsel would deliver to defendant's counsel the note in question, so that the same might not be an outstanding obligation against defendant; the indebtedness represented by the account and the note being admitted to be due from plaintiff to defendant.
The circuit court made a finding of facts, though not thereto requested, in which the court found that the note had not in fact been delivered to defendant's counsel, though counsel for plaintiff believed that the same had been done. The court further found, from the letters and testimony respecting the giving of the note, that the latter was accepted by the defendant in "settlement of said account;" that the agreement later entered into by defendant's counsel respecting the surrender of the note was a waiver of defendant's right to plead the acceptance of the note by plaintiff, as being a settlement and payment of the account, as a defense to this action on the account itself; finding, however, that the condition upon which such waiver had been made had not been performed by plaintiff.
The court then proceeded apparently to treat the action as one upon a lost note, entered judgment for the plaintiff for the amount of the indebtedness and accrued interest, and ordered that execution be stayed until the plaintiff executed and delivered to defendant a bond in the sum of one thousand dollars, with surety or sureties to be approved by the court, conditioned that plaintiff would save the defendant harmless from any loss or damage which might thereafter accrue by reason of any claim or claims by any other person on account of such note. The record discloses that such bond was given and approved.
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