Booth v. Dougan
Decision Date | 06 January 1920 |
Docket Number | No. 15558.,15558. |
Citation | 217 S.W. 326 |
Parties | BOOTH v. DOUGAN. |
Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Thos. L. Anderson, Judge.
"Not to be officially published."
Action by David S. Booth against Bruce Dougan. Judgment for defendant, and plain tiff appeals. Affirmed.
Clarence T. Case and Benj. J. Klene, both of St. Louis, for appellant.
Manton Davis and Connett & Currie, all of St. Louis, for respondent.
Plaintiff commenced his action against the defendant before a justice of the peace to recover $447, with interest from August 12, 1915. The account is made up of charges for visits made by plaintiff, as a physician in attendance on defendant and his family, from November 4, 1911, to May 30, 1915, and totals $1347, on which a credit of $900 is entered, the balance claimed being $447. The payments credited were $200 paid July 27, 1912; $200 paid April 4, 1913; $300 paid January 30, 1914, and $200 paid March 2, 1915. The case went on appeal from the justice of the peace to the circuit court and there was tried de novo, where there was a verdict for defendant from which plaintiff appeals.
It was admitted at the trial that it was not necessary for the plaintiff to prove each of his items in detail but that it would be conceded that he would testify to the correctness of each item. Defendant's claim, however, was that the payment of March 2nd, of $200, was made by defendant and accepted by plaintiff as in full of all amounts due him. This payment was made by check dated March 1, 1915, drawn on the Boatmen's Bank of St. Louis, and reads: This was signed by defendant, indorsed by plaintiff and collected through the"bank, and there was evidence to the effect that it had been inclosed in an envelope addressed to plaintiff, accompanied by a letter, of date March 1, 1915, reading as follows:
"Inclosed please find my check for $200 in full of account to date."
Plaintiff denied receiving the letter but acknowledged receiving and cashing the check, and testified that he had not noticed the words "In full of account to date," written in it. It appeared from the evidence that at different times plaintiff had sent his account for his professional services to defendant and that defendant had paid him $700 prior to the payment of this $200. There was testimony for defendant to the effect that plaintiff had sent defendant a bill for $160 covering a certain portion of the time and on or about March 1, 1915, defendant called plaintiff over the telephone about his bill and asked him how much the whole bill was. Plaintiff told him that it was four hundred and some odd dollars, to which defendant said:
"Well, you have sent me a bill here for $160, which is half; let's split the rest of it and settle on that basis."
After quite an argument over the telephone, defendant telling plaintiff he was attempting to make as good a settlement as he could, it was finally agreed between them that plaintiff would cut his bill in half and accept $200 in full payment of what was due him. Accordingly, defendant, a few days later, made out this check for $200, inclosed it in a letter, which he mailed to plaintiff, which check was duly indorsed by plaintiff and paid through the bank.
While the defendant admitted that the doctor would testify to the correctness of his charges and to their reasonableness, it did not appear that there was anything more than an unliquidated account between them; never an account stated, in the technical sense of that term. Learned counsel for appellant have proceeded on the theory that it was a stated account, or a liquidated account, and that payment of part—even acceptance of payment of part—could not satisfy the whole, citing Riley et al. v. Kershaw, 52 Mo. 224, and a number of cases following that. The fallacy of this argument consists in the assumption that this...
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