Bloss v. Aurora Milling Co.
| Decision Date | 25 March 1921 |
| Citation | 229 S.W. 833,207 Mo.App. 402 |
| Parties | H. H. BLOSS, Appellant, v. AURORA MILLING CO., Respondent |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Charles L. Henson, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
H. H Bloss, pro se. and Carr McNatt for appellant.
(1) Where the facts are undisputed the question of whether there is an account stated is for the court. Adam Roth v Grocery Co., 183 Mo.App. 429. (2) Before there can be an account stated invoked against a party, it must be shown that he admitted its correctness. Risk v. Dale, 188 Mo.App. 726. (3) The reasonableness of the time an account is kept is a question of law for the court, as to whether it becomes an account stated, yet, where the time is disputed as to the rendition of the account, and the making of the objections, the latter might be a question for the jury. Borkowske v. Jencke, 170 Mo.App. 610; McMaster v. Bank, 74 Mo.App. 288; Powell v. Railroad, 65 Mo. 662. (4) Before it could be said that there was an account stated by reason of statements rendered, to an agent it must be shown that such agent had authority to adjust such an account. R. R. Co. v. Com. Co., 71 Mo.App. 299. (5) An account stated can only arise as the result of an agreement between the parties, either express, or implied, hence it has been held, that when an account is rendered by one party to another, and he fails within a reasonable time to object thereto his implied assent is presumed, but in no case has it ever been held that the rendition of an account by one party to another and his immediate objections thereto was necessary to constitute an account stated. Columbia Brewing Co. v. Brener, 90 Mo.App. 96; Rowland v. Donivan, 16, Mo.App. 554; 1 Corp. Jur., page 680, sec. 251, et seq.; McKinley v. Bank, 74 Mo.App. 288, 289; Barkosky v. Jenicks, 170 Mo.App. 610, 615; Powell v. Railroad Co., 65 Mo. 662.
James A. Potter and I. V. McPherson for respondent.
(1) Instruction number two given for the plaintiff was erroneous. (a) Because it singles out and comments on particular evidence. Smith v. Jefferson Bank, 147 Mo.App. 461; Richardson v. Metrop. S. Ry. Co., 166 Mo.App. 162; Greenbrier Dist. Co. v. Van Frank, 147 Mo.App. 204. (b) Because it comments on matters not in issue. Eames v. N. Y. L. Ins. Co., 134 Mo.App. 331; Sinnamon v. Moore, 161 Mo.App. 168; Hufft v. Frisco, 222 Mo. 286; Briscoe v. Laughlin, 161 Mo.App. 76; Shannon v. Abell, 169 Mo.App. 598. (c) Because it shifted the burden to the defendant, was unintelligible and likely to mislead the jury. Cole v. Waters, 164 Mo.App. 567; Gourley v. Amer. Hardwood Lbr. Co., 185 Mo.App. 360, Ramey v. Lewis, 182 Mo.App. 58; Knapp v. Hanley, 153 Mo.App. 169.
Action to recover balance alleged to be due for wheat sold and delivered. Verdict for plaintiff for $ 463. Motion for new trial and sustained and plaintiff has appealed.
The petition is in the usual form for goods sold and delivered and alleges that plaintiff sold defendant 1416 bushels of wheat of the value of $ 1.98 per bushel, making a total of $ 2803.63 and gives credit for payments which leaves a balance due of $ 495.66.
The answer is a general denial; plea of payment for all wheat received by it and the further defense that an account stated had been rendered to plaintiff and retained by him without objection and payment had been made by defendant and accepted by plaintiff in accordance with the account stated and hence the claim of plaintiff was settled and satisfied.
The evidence discloses that there was no specific contract for the sale and purchase of the wheat before its delivery. The defendant was operating a mill and elevator at Aurora and bought wheat from all who brought it there to sell. The plaintiff owned a farm near Aurora and harvested and threshed the wheat from about 100 acres of land and as he threshed it, he had it hauled in a truck and delivered to defendant. The threshing and hauling covered a period of seven days and 27 loads of wheat were delivered in that time. The thresher had a weigher attached which weighed the wheat as it was threshed. Defendant had scales at its mill on which each load was weighed. It had a beam which weighed in bushels and it usually weighed in bushels. The truck would drive on the scales and the gross weight be noted in bushels, then the wheat would be dumped into a pit, the empty truck weighed and its weight in bushels subtracted from the gross weight to ascertain the amount of the wheat. After weighing each load, a ticket was given to the driver of the truck showing the number of bushels in that load. These tickets were in the following form and were all similar except as to number of bushels and name of the weigher:
Ackerman was the weigher and Bosley the driver of the truck. When the wheat was dumped into the pit at the mill, it was conveyed immediately to the elevator and was mingled with other wheat and may have been so mingled in the pit. Plaintiff was not present when any of the wheat was weighed and Bosley, who drove the truck and received the tickets from the weigher, did not deliver each ticket to plaintiff as he received it. The tickets for what was hauled on the first day were delivered to plaintiff on the second day and the others at intervals as the hauling progressed. Upon the last day of the threshing and when the threshing was nearly completed, plaintiff made a computation of the bushels of wheat as shown by the tickets he had received from the hauler and compared it with the weights as shown by the weigher of the thresher and then discovered for the first time that there was a discrepancy between the bushels shown by the total of the mill tickets and the bushels as shown by the weigher on the thresher. Upon making this discovery, he took steps to test the weigher on the machine and had some wheat weighed on other scales before taking it to the mill with a view of trying to ascertain the cause of the discrepancy between the machine's weights and the mill's weights. Soon afterward, he saw the manager of the mill and told him of the discrepancy in the weights and some effort was made at adjustment which did not succeed. The defendant paid for the wheat according to the weights as shown by its scales and plaintiff refused to accept this in full, claiming that he had delivered more wheat than was shown by the mill tickets, and brought this suit for what he claimed was the difference.
The motion for new trial was sustained on the ground that the trial court thought error had been committed in giving Instruction No. 2 for plaintiff and in refusing Instruction E asked by defendant. These instructions are as follows:
Instruction No. 2 for Plaintiff: "You are further instructed that while the burden of proof is on plaintiff to show by a preponderance of the evidence that he delivered to the defendant at its place of business the quantity and quality of wheat for which a recovery is sought herein, it is not plaintiff's duty to explain what became of said wheat after its delivery nor the manner of defendant's weighing or measuring the same nor the condition nor operation of its scales, the measures or testers, if any, used by defendant in ascertaining the weights, measures, or grades of said wheat."
Instruction E asked by defendant: "If the jury shall find and believe from the evidence in this case that the plaintiff delivered the wheat mentioned by the witnesses to the defendant to be weighed on its scales and accepted and knew that said wheat would be mixed and mingled with other wheat in its elevator and that as each of said loads of wheat were weighed, the defendant delivered to and the plaintiff received tickets showing the amount of said wheat as shown by said scales and retained the same and made no objection to the said weights at the time and made no objections to them for a reasonable time thereafter, then plaintiff is not entitled to recover."
One ground of defense was that an account stated had been furnished plaintiff by defendant and that he was bound thereby. At the trial, the court refused to submit that issue to the jury and we assume that the failure to do so was afterward thought to be error which resulted in the motion for new trial being sustained.
The facts which defendant contends show that the plaintiff is bound by an account stated are as follows: Defendant was operating a mill and buying wheat from all parties who brought it. It had scales on which all wheat purchased was weighed. When a load was weighed, the wheat was immediately dumped into a pit and from there carried to the elevator and mingled with other wheat so that if a mistake were claimed afterward, it could...
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