Cannon v. SanFord

• Decision Date: 09 February 1886
• Citation: 20 Mo.App. 590
• Parties: F. A. CANNON, Respondent, v. L. SANFORD, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 590

F. A. CANNON, Respondent,

v.L. SANFORD, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the Cape Girardeau Court of Common Pleas, R. L. WILSON, Judge.

Affirmed.

SAM. M. GREEN, for the appellant: But if there be any mistake, or omission, or accident, or fraud, or undue advantage, by which the account stated is vitiated and the balance is incorrectly fixed, a court of equity will not suffer it to be conclusive on the parties, but will allow it to be opened and re-examined. 1 Story's Equity Jur. (5 Ed.) sect. 523; Adams Eq. (5 Am. Ed. sects.) 227-8, and side notes. Mistakes of attorneys touching matters peculiarly within their own knowledge have been corrected by courts of equity, so as to conform to the intention of the parties. Adams Eq., sect. 170; Rhodes v. Outcalt, 48 Mo. 367; Welday v. Jones, 79 Mo. 170; Boon v. Miller, 16 Mo. 457. When a court of equity obtains jurisdiction of a cause, for any purpose, it may proceed with the whole case and decide it upon its merits, and, therefore, under the evidence the account should have been opened. Keeton v. Spradling, 13 Mo. 321; Corby v. Bean, 44 Mo. 379.W. H. MILLER, for the respondent: Equity will not relieve against mistakes which arise from culpable negligence. Redfield's Story, sect. 146 (8 Ed.); 2 Pomeroy Eq. Jur., sect. 820; 3 Pomery Eq. Jur., sect. 1421; 1 Poth. Ob. 269, sect. 2; Brown v. Fagan, 71 Mo. 368.

THOMPSON, J., delivered the opinion of the court.

This is an action for the sum of $881.29, being the balance due upon a final account and settlement, stated and rendered by the defendant to the plaintiff, covering transactions by the defendant on behalf of the plaintiff, as her attorney and business agent, during the preceding ten years. This suit was instituted in August, 1884. Subsequent to the institution of the suit, the defendant made the plaintiff two payments in part liquidation of this balance, namely, three hundred dollars, on September 12, 1884, and four hundred dollars, on September 22, 1884, leaving a sum due, according to the account rendered by him, of $181.29, for which judgment was rendered. From this judgment the defendant appeals.

In January, 1885, the defendant filed an amended answer, setting up as an equitable defence and counter-claim, that these two payments, made since the bringing of the suit, were made by mistake, and asking to recover them back; also setting up in substance the following matters: That in the rendition of the final account showing the balance sued for, he had by mistake neglected to obtain credit for a fee of one hundred and fifty dollars, entered on the credit side of his final account, until the rendition of said account, whereby the plaintiff had been allowed, for the period of some nine years, which had elapsed since the service for which the fee was charged was rendered, compound interest on an amount equal to this sum; in other words, that this credit should have been taken as of September 12, 1876, instead of its being taken as of the date when the final account was rendered. Also, that the defendant had erroneously charged himself with the sum of five hundred dollars, in November, 1875, and had erroneously charged himself with interest on that sum from the twelfth day of September, 1874, to the time of the rendition of the final account, amounting to four hundred and twenty-seven dollars. Also, that his services were reasonably worth forty dollars per annum, and that by mistake he had failed to take credit for this sum at the end of each year since the twelfth of September, 1876, instead of taking credit for the round sum of one hundred and thirty-five dollars, being fifteen dollars per year for nine years, as he had done in the final account. And he prayed that the court would hear evidence and correct these mistakes, and render him a judgment for the amount which should be found due him.

The case was tried by the court as a case in chancery, and on the trial, the plaintiff put in evidence the final account which had been rendered to her by the defendant, ending with the words, “Balance due Miss Cannon in money, $881.29.”””” Also, three apologetic letters by the defendant to the plaintiff, dated respectively, February 11, May 16, and June 17, 1884, asking for further time, and promising to pay the amount due her. The last of these letters was objected to, on what ground we can not understand, for it was a solemn admission by the defendant against his interest, touching the subject matter of the suit, and, as such, was clearly competent.

The defendant, to sustain this...