Chisler v. Staats

• Decision Date: 05 November 1973
• Docket Number: No. KCD,KCD
• Citation: 502 S.W.2d 424
• Parties: W. R. CHISLER, Appellant, v. Richard E. STAATS and Mrs. Richard E. Staats, Respondents. 26515.
• Court: Missouri Court of Appeals

Page 424

502 S.W.2d 424

W. R. CHISLER, Appellant, v. Richard E. STAATS and Mrs. Richard E. Staats, Respondents.

No. KCD 26515.

Missouri Court of Appeals, Kansas City District.

Nov. 5, 1973.

Motion for Rehearing and/or Transfer Denied Dec. 3, 1973.

J. Kirk Rahm, Warrensburg, for appellant; Hensley & Rahm, Warrensburg, of counsel.

Paul L. Wickens, Kansas City, for respondents; Jackson & Sherman, Kansas City, of counsel.

PER CURIAM:

Suit for an account stated, upon appellant's (Chisler's) petition, was tried to the court. After presentation of all the evidence, judgment was entered for the debtor (Staats). The claim was for the unpaid balance of $601.90 on a debt of $5,001.90, the original obligation having allegedly been acknowledged by the defendants, as the balance due between the parties for work performed by Chisler.

The parties entered into an oral contract for Chisler to drill a well and install accessory equipment to provide water for respondents' home at Lone Jack, Missouri. The work was begun in November, 1969, and completed in December, 1969. Upon completion of the work appellant submitted a bill for $5,001.90, less a $1,000.00 advance payment made by respondents.

Appellant testified that respondents neither made objection to, nor expressed surprise at, the bill when it was presented for payment. Respondents admit that there was no objection made to the bill but counters that there was surprise expressed at the size of the bill. Both parties agreed that respondents were to pay only $1,000.00 when the bill was presented, but at appellant's request, the payment was increased to $1,500.00.

Respondents made additional payments to Chisler of $1,000.00 in January, 1970, $500.00 in February, and $400.00 in April for the work performed, reducing the outstanding balance to $601.90. In June, respondents notified Chisler that the parties should meet and discuss the charges before any more payments were made.

Each of the partial payments made in 1970 were accompanied by letters signed by Staats. The letter included with the January payment stated:

'You'll find inclosed (sic) a check for $1,000.00. On checking with the bank I found I can't cash in any of my savings certificates till (sic) they come due. (Didn't know your bill would be so much.) I hope this helps till (sic) I get the rest to you.' (Plaintiff's Exhibit #2)

Included with the $500.00 payment in February was another letter signed by respondents, the relevant portion of which states:

'Enclosed you'll find a check for $500.00. This is all I can get you now as I mentioned before I have savings certificates that come due next month and I will get the balance to you then.' (Plaintiff's Exhibit #4)

At trial, respondents contended, first, that there was no acknowledgment and promise to pay the account when rendered in December, 1969, and, second, satisfaction of the debt had been made in accordance with the original oral contract. Respondents testified that the charges for the drilling and casing for the well were calculated at $3.00 per foot rather than $2.50 per foot as contracted and that a $75.00 installation charge was made contrary to the original contract. These alleged variations in the terms of the contract resulted in an overcharge of $664.50, but when the account due reached $601.90, Staats 'was willing to get out of it for what (he) figured was fair.'

An account stated is an agreement between parties, having had previous financial transactions, that a balance struck is correct and due between the parties, and a promise by the debtor, either express or implied, to pay the balance. 1 C.J.S. Account Stated § 1; Stewart v. St. Louis & S. Ry. Co., 157 Mo.App. 225, 137 S.W. 46 (1911); Gerstner v. Lithocraft Studios, 258 S.W.2d 250 (Mo.App.1950). It is a new cause of action arising from the prior monetary transactions (Barr v. Lake, 147 Mo.App. 252, 126 S.W. 755 (1910)) and amounts to an admission of liability by the debtor, Stewart v. St. Louis & S. Ry. Co., supra, and Gerstner v. Lithocraft Studios, supra.

An essential element of an action for an account stated is the promise, either expressed or implied, to pay the agreed upon balance. Quint v. Loth-Hoffman Clothing Co., 207 Mo.App. 391, 233 S.W. 92 (1921). Chisler contends that respondents' letters of January and February recognize the correctness of the account rendered and expressly promise to pay the balance due between the parties. Also, if no express promises were made, the retention of the account rendered for a reasonable time without objection admits to the account and implies a promise to pay. Alexander v. Scott, 150 Mo.App. 213, 129 S.W. 991 (1910); Powell v. Pacific Ry. Co., 65 Mo. 658 1877); Koegel v. Givens, 79 Mo. 77 (1883).

The two letters from the respondents, each including an enclosure of partial payment, are clearly unconditional acknowledgments of the account due. Gerstner v. Lithocraft Studios, supra. (Also see Conkling v. Quellmalz Lumber & Mfg Co., 20 S.W.2d 564 (Mo.App.1929); McDonald v. Mossman, 181 Mo.App. 475, 168 S.W. 816 (1914).) The first letter followed the initial presentation of the bill in December, 1969 and expressly promised to, '. . . get the rest to you.' On January 13 and February 9, 1970, statements of account were again rendered to the respondents. The latter requested payment by February 14, 1970. Thereafter, respondents sent the $500.00 payment and the letter stating '. . . I will get the balance to you . . .'

Even if the letters did not objectively manifest an unconditional agreement that the account was correctly stated and a promise to pay the balance due, the respondents retained the account without objection for more than a reasonable time. The circumstances of a particular case determine the reasonable period of time that an account may be retained without objection....