Cape Girardeau & State Line R.R. Co. v. Kimmel

• Decision Date: 31 October 1874
• Citation: 58 Mo. 83
• Parties: CAPE GIRARDEAU & STATE LINE RAILROAD COMPANY, Respondent, v. GEORGE G. KIMMEL, Appellant.
• Court: Missouri Supreme Court

58 Mo. 83

CAPE GIRARDEAU & STATE LINE RAILROAD COMPANY, Respondent,

v.GEORGE G. KIMMEL, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Cape Girardeau Court of Common Pleas.

Lewis Brown, for Appellant.

I. At the close of plaintiff's evidence in chief, there having been no evidence offered tending to show “a final settlement on the 5th day of July, 1872,” and a balance due from defendant of $298.42, or a less amount, the defendant's motion to dismiss should have been sustained, because there was an utter failure of proof. (Clark vs. Han. & St. Jo. R. R. Co., 36 Mo., 202; Smith vs. Han. & St. Jo. R. R. Co., 37 Mo., 287; Boland vs. Mo. R. R. Co., 36 Id., 484; Jaccard vs. Anderson, 37 Id., 91.)

II. The introduction of the minute book of the company to show a “final settlement,” as well as the copy of the defendant's statement dated May 20th, 1872, was improperly permitted, because: 1st--both were secondary evidence; 2nd--the treasurer's book (shown to be in court) and the original statement were the best evidence, and should have been produced or accounted for, and did not tend to prove a “final settlement;” 3rd--a party cannot prove his own admissions; (Moore vs. Sauborin, 42 Mo., 494; 38 Mo., 494; 33 Mo., 535,) 4th--the evidence must be pertinent to the issue. The minute book of the company shows only the report of a committee “appointed to settle with the late treasurer;” but does not show any assent of defendant to such settlement.

Louis Houck, and Alex. Ross, for Respondent.

LEWIS, Judge, delivered the opinion of the court.

The cause of action is stated in the petition as follows: “That the defendant was the treasurer of plaintiff, acted and served as such from the 20th day of January, 1872, to the 5th day of July, 1872, and that he, as treasurer of plaintiff, on final settlement, on, to-wit, the said 5th day of July, 1872, was indebted to plaintiff in the sum of $298.42 balance on his settlement as treasurer of plaintiff; that the said balance due as aforesaid was demanded in writing; that the said defendant, although requested to pay said amount, has failed, refused and neglected and still fails, neglects and refuses to pay said amount. Wherefore plaintiff asks for judgment against the defendant for the sum of $400, with its costs.”

If any recoverable demand appears in this statement it is upon an account stated, as known to the common law. It is not alleged that the defendant ever received any money belonging to the plaintiff, or that he did any other act which could of itself originate an obligation to pay what the plaintiff demands. The word “settlement” implies that there were previous transactions between the parties. But whatever obligations such transactions may have imposed on either, became legally merged in the settlement or account stated, and a new obligation then attached to the party found in arrear, which the law construes into a promise that he would pay the balance so agreed to be due. To maintain an action upon such premises, the first essential is, that the balance be acknowledged by the party to be charged. I...