Borkowski v. Janicke

• Decision Date: 19 May 1913
• Citation: 170 Mo. App. 610,157 S.W. 125
• Parties: BORKOWSKI v. JANICKE et al.
• Court: Missouri Court of Appeals

157 S.W. 125

170 Mo. App. 610

BORKOWSKI v. JANICKE et al.

Kansas City Court of Appeals. Missouri.

May 19, 1913.

1. JUSTICES OF THE PEACE (§ 174) — APPEAL — AMENDMENT OF PETITION — DEPARTURE.

Owing to the liberality permitted in making amendments in the justice court, where technical formality is not required, an amendment to a petition on appeal to the circuit court from a justice court, whereby plaintiff changed his action from one on an account to one on an account stated, does not constitute a departure.

2. PLEADING (§ 420) — DEFECTS — WAIVER.

By filing an answer and going to trial, defendants waived objections that the petition as amended constituted a departure.

3. ACCOUNT STATED (§ 4) — WHAT CONSTITUTES.

Where the various items due plaintiff from defendants were set down in duplicate passbooks, one of which plaintiff kept, the other being retained by defendants, the account became an account stated, on the balance being struck and defendants without objection stating that they would pay; one of them offering to give a note for the amount.

4. ACCOUNT STATED (§ 20) — WHAT CONSTITUTES — REASONABLE LENGTH OF TIME.

While the reasonableness of the length of time debtors kept an account without objection is a question of law for the court in determining whether it became an account stated, it is a question for the jury where there is a dispute as to the time of the rendition of the account and the making of objections.

5. TRIAL (§ 331) — VERDICT — SUFFICIENCY.

An ambiguous verdict cannot stand.

6. TRIAL (§ 327) — VERDICT — SUFFICIENCY.

In an action against two defendants, a verdict entitled "B. v. R. J. and others," and reciting that, "We, the jury, find for the plaintiff and against the defendant," is sufficient; the absence of the letter "s" on the word defendant being merely a misprision, the verdict on its face showing that, there was more than one defendant and that it was against both, and there being no claim that the liability of defendants was not joint.

7. APPEAL AND ERROR (§ 1068) — REVIEW — HARMLESS ERROR.

In an action against two defendants, an instruction submitting a form of verdict is not prejudicial, where it merely left a blank for the writing in of the names of the defendants, as inviting error in the form of the verdict.

Appeal from Circuit Court, Buchanan County; W. K. Amick, Judge.

Action by J. C. Borkowski against Rudolph Janicke and Mrs. Rudolph Janicke, begun in Justice Court, and appealed by defendants to the Circuit Court, where, from a second adverse judgment, defendants appeal. Affirmed.

B. M. Achtenberg, of St. Joseph, for appellants. Spencer & Landis and Guy C. Barr, all of St. Joseph, for respondent.

TRIMBLE, J.

This is a suit to recover a balance due on an account for groceries sold the defendants and used by them in their family. It originated in a justice court, where judgment was rendered for plaintiff, and an appeal was taken to the circuit court. Motions were there filed by defendants to make the petition more definite and certain, which being sustained, the plaintiffs, by leave of court, filed an amended petition in which they asked judgment for the same balance as upon an account stated. The defendants thereupon filed a joint motion to strike out the amended petition as a departure, but this the court overruled. Whereupon defendants filed a joint answer and submitted the disputed questions of fact to the arbitrament of a jury. A verdict was returned for plaintiff in the full amount claimed, to wit, $187.75, and we are asked to review the judgment rendered thereon.

The first error complained of is that the court overruled defendant's motion to strike out the amended petition, which declared on a stated account and was for that reason a departure. It is held, in Hanson v. Jones, 20 Mo. App. 595, loc. cit. 600, that such an amendment does not introduce a new cause of action, but that it remained as before, a suit for a balance due on a merchant's account; and this ruling was approved in Newberger v. Friede, 23 Mo. App. 631, loc. cit. 637. These rulings are based on the liberality accorded amendments to pleadings in justice courts where technical formality is not required.

But whether the amendment was a departure or not, defendants waived all error in that regard by filing answer and going to trial, thereby taking their chances on the...