Buffington v. South Missouri Land Co.
| Decision Date | 19 April 1887 |
| Citation | 25 Mo.App. 492 |
| Parties | A. J. BUFFINGTON, Respondent, v. SOUTH MISSOURI LAND COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the Howell County Circuit Court, J. R. WOODSIDE, Judge.
Reversed and remanded.
B. F OLDEN, for the appellant: The real party in interest must sue. Gardner v. Armstrong, 31 Mo. 535; Rev. Stat sect. 3462. A final settlement of accounts between the parties is conclusive of the facts therein stated, and can not be contradicted by parol evidence. Clannengen v Gensse, 1 Mo. 141; Ashley v. Bird, 1 Mo. 640; Lane v. Price, 5 Mo. 141; Woodward v. McGaugh, 8 Mo. 161; James v. Jeffreys, 17 Mo. 577; Bence v. Beck, 43 Mo. 266; Madock v. Ganahl, 47 Mo. 135; Grumley v. Webb, 44 Mo. 444; Bonnell v. Chamberlain, 25 Conn. 487; Pickel v. Chamber of Commerce, 10 Mo.App. 191.
CHARLES CLAFLIN ALLEN, of counsel for the appellant: Every action must be prosecuted in the name of the real party in interest. Rev. Stat., sect. 3462; Hutchings v. Weems, 35 Mo. 285; Goodger v. Finn, 10 Mo.App. 226; S. C., 17 Mo.App. 23; Snyder v. Rail road, 86 Mo. 613. The suit should have been brought in the name of the assignee. Brady v. Chandler, 31 Mo. 28. It was for the court to say, under the evidence, whether the plaintiff was the real party in interest. Williams v. Whitlock, 14 Mo. 552. The plaintiff's receipt, on the account stated, was conclusive against him. Pickel v. Chamber of Commerce, 10 Mo.App. 191.
LIVINGSTON & PITTS, for the respondent: While the receipt introduced by the defendant was foreign to the subject matter of this suit, yet it was only prima facie evidence of the facts therein contained, and was subject to be explained or rebutted. Riley v. Kershan, 52 Mo. 224; Bigbee v. Coombs, 64 Mo. 529; Carpenter v. Jamison, 6 Mo.App. 216.
The plaintiff sues for three hundred and seventeen dollars--" balance on railroad ties sold and delivered to the defendant, at its instance and request." The petition refers to an intemized account therewith filed, but no such account appears in the transcript. The answer is a general denial. The plaintiff testified that he furnished, in the years 1884 and 1885, 2,769 ties, the agreed prices for which amounted to six hundred and seventy-five dollars, and that he had received, in all, from the defendant, three hundred and fifty-eight dollars, leaving a balance due him of three hundred and seventeen dollars. The defendant's testimony tended to prove that the plaintiff had furnished only 2,616 ties, for which he had been paid the sum of $569.40, leaving an acknowledged balance due him of $6.48. The verdict and judgment were in favor of the plaintiff for $306.25.
The testimony tended to show that the defendant had been garnished, on account of an indebtedness due from the plaintiff, and had paid three hundred and fifty dollars to the constable, in satisfaction of the garnishment. A receipt and account, signed by the plaintiff, were put in evidence, as follows.
" Burnham Mill, Mo., July 6, 1885.
Received of H. H. Hunnewell, Charles Marriam, and Nathaniel Thayer, trustees of the South Missouri Land Company, six and 90/100 dollars, for making and delivering ties, as shown by the following statement of account, which is hereby acknowledged to be correct:
| Jan.--By 808 ties, at 25 cts., $202.--85 ties, at 9 cts., $7.65. Shipped in January, 1885 | $208 65 |
| March.--By 1,082 ties, at 25 cts., $270.50.--86 ties, at 9 cts., $7.74. Shipped in March, 1885 | 278 24 |
| April.--By 240 ties, at 25 cts., $60.00. 239 ties, at 9 cts., $21.50. Shipped in April, 1885 | 81 50 |
| Dec., 1884.--To Burnham store supplies furnished | $ 13 00 |
| Jan., 1885.--To Burnham store supplies furnished | 2 50 |
| Feb., 1885.--To Burnham store supplies furnished | 3 45 |
| Feb. 5, 1885.--To cash | 193 55 |
| June 10, 1885.--To cash paid W. R. Stills, which payment is hereby approved | 350 00 |
| Balance | $6 90 |
| [Signed] | A. J. BUFFINGTON." |
The only testimony which tended to impeach the correctness of this account appeared in the plaintiff's oral statement of differing quantities and amounts, and his further statement, in testifying that he " did not understand it to be a receipt in settlement of all ties made up to the date of the receipt." The court gave, for the plaintiff, an instruction, in these words:
" A receipt is only prima facie evidence of the facts therein contained, and is subject to be rebutted, explained, or overcome, by other...
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