Dameron v. Harris
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 954,281 Mo. 247 |
| Parties | MALINDA E. DAMERON, Appellant, v. B. M. HARRIS, Administrator of Estate of J. H. PATTON |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Affirmed (upon condition).
Hostetter & Haley for appellant.
(1) The referee erred in holding that decedent and plaintiff agreed on a stated account, and in holding that the account was closed at intervals during decedent's twenty years' management on the farm, and in holding that all items of account in plaintiff's claim which accrued more than five years before same was filed in the probate court were barred and the circuit court likewise erred in adopting these views and findings of the referee. (2) The referee erred in not considering the items of the account even on his own theory back as far as April 25, 1908, at which date he fixed the second break in the continuity of the account, and the circuit court erred in acquiescing in this position of the referee. "An account is not closed each time a footing is made and the balance carried to another column." 1 R C. L. p. 206, par. 2. An account stated does not preclude the party denying its correctness from showing that certain items were not included therein. 1 R. C. L. p. 220, par. 20; 1 R. C. L. p. 210, par. 7. When it is fairly inferable from the conduct of the parties, while the account is accruing, that it is to be taken as one, then none of the items are barred by the Statute of Limitations unless all are; and if there be any item in the account within the five year period of limitation, then such item will draw all the items antedating such five-year period, so that none will be barred; and this is true even though all the items are on one side. Chadwick v. Chadwick, 115 Mo. 586; Ring v. Jamison, 66 Mo. 424; Roberts v. Neale, 134 Mo.App. 612. An account stated cannot become such merely by being presented by the one party to the other and the retention of the same by the latter without objection. If the party to whom the account is rendered has no knowledge of his own interests in the matters contained in the account, and had not the opportunity to acquire knowledge, as to its incorrectness as to omitted items in his favor, then such party is not bound thereby. It is only assent with knowledge which counts. 1 C. J. p. 686, sec. 264; 1 C. J. p. 714, sec. 353. Accounts between persons standing in confidential relations toward one another will be held open more readily than among persons dealing at arm's length; and complicated accounts will be opened up more readily than simple ones in the interest of the one who could not have had full knowledge. 1 C. J. p. 709, sec. 335; 1 C. J. p. 711, sec. 336. (3) The referee erred in admitting in evidence the "book account" alleged by defendant to have been kept by decedent, the circuit court sanctioning the ruling. In order to render an account book legitimate evidence, the entries must be contemporaneous with the transactions entered. Nelson v. Nelson, 90 Mo. 463. (4) The referee erred in finding on the issue of compensation $ 100 per year instead of $ 50 per year and the circuit court erred in upholding such finding of the referee. (5) In a compulsory reference, as in the case at bar the Supreme Court is not bound by the findings of either the referee or the circuit court, but can make its own findings from the evidence. It is not even controlled as to the weight of the evidence by the lower tribunals, as in ordinary cases involving issues of fact. Williams v. Railway Co., 153 Mo. 487; Buxton v. Debrecht, 95 Mo.App. 599; Caldwell v. Wright, 88 Mo.App. 403; Small v. Hatch, 151 Mo. 300.
Frank J. Duvall and Pearson & Pearson for respondent.
(1) Every communication sent to Mrs. Dameron by J. H. Patton, containing a statement of their account, or any kind of a statement, together with a statement of the amount of the balance due to her from Col. Patton, or from her to Col. Patton, and not objected to by Mrs. Dameron within a reasonable time thereafter, constitutes an account stated, up to that date; and none of the items as to any other business transacted by him for her, previous to that date, are open to investigation. Brown v. Kimmell, 67 Mo. 431; McCormick v. Sawyer, 104 Mo. 43; Powell v. Pacific R. R. Co., 65 Mo. 661; Alexander v. Scott, 150 Mo.App. 222; Grocery Co. v. Hotel Co., 183 Mo.App. 435; Keller v. Olson, 187 Mo.App. 474. (2) The Statutes of Limitations commence to run from the time the account is stated. Estes v. Hamilton-Brown Shoe Co., 54 Mo.App. 550. (3) Col. Patton was a farmer who kept an account book in which he entered the items of the various transactions he had, both with reference to the farm of Mrs. Dameron, which he was looking after, and other matters. This account book was properly identified and introduced in evidence. The items entered in it as evidences of such transactions in favor of Col. Patton with Mrs. Dameron concerning this farm. Anchor Milling Co. v. Walsh, 108 Mo. 285; Lyons v. Corder, 253 Mo. 549; Siegelman v. Rodgers, 113 Mo. 649; Schmidt v. Lightner, 185 Mo.App. 548. (4) His book account shows that Col. Patton had made an annual charge of one hundred dollars, as compensation for his services, and there had never been an objection made by Mrs. Dameron.
Prior to 1893, plaintiff's husband, James Dameron, died, leaving a last will, by which he devised to plaintiff, for her life, a farm of 640 acres, of which 200 acres lie in Lincoln County and 440 acres in Pike County. The farm is two miles south of Paynesville, in Pike County, where James H. Patton, known in the vicinity as Colonel Patton, resided. He was an experienced and prosperous farmer and had managed his own affairs well; so on October 1, 1893, plaintiff employed him to take charge of her farm for an indefinite period, as she intended to go to Bowling Green, in Pike County, for the sake of the health of one or more of her children, of whom there were living at that time one son and two or three daughters. Col. Patton was to be paid fifty dollars a year for his services, which began October, 1893, and continued twenty years, and until November 17, 1913. Meanwhile plaintiff and her family resided or sojourned for periods not definitely stated, at Bowling Green, Kirksville and Eolia, places not far away: at Hugo, Oklahoma, Hot Springs, Arkansas, and St. Louis. Col. Patton died in 1914, and on May 11, 1915, a demand against his estate for $ 29,209.18, which is the subject-matter of the present proceedings, was presented to the probate court and later was lodged in the circuit court by appeal. The demand is for many items of indebtedness alleged to be due plaintiff on account of money received by Col. Patton for rent of the farm, or portions of it, the proceeds of crops, timber and other articles sold from the farm, which were never accounted for to plaintiff; overcharges for the services of deceased; rentals never paid to plaintiff; damage to the farm to the amount of $ 2500, caused by cutting down timber trees, contrary to plaintiff's order; damage in the sum of $ 3000, due to not rotating the crops to preserve the fertility of the soil, and permitting the fences and other improvements to get out of repair; and for $ 3500, the value of corn, hay and other products of the farm which he is alleged to have surreptitiously converted to his own use. Attached to the statement of demand is an itemized account, composed of four hundred and seventy-six debits against the deceased and two hundred and five credits, showing the balance of $ 29,209.18 in favor of claimant, the total debits amounting to $ 47,466.12 and the credits to $ 18,256.94.
Defendant's answer, as administrator of the estate of deceased, states that plaintiff knew what was being done on the farm during the years deceased managed it; that deceased kept a book account of all items of money received by him as plaintiff's agent and bailiff, which showed for what they were received, and his disbursements connected with the management of the farm from the year 1893 to and including the year 1913; that said account covered not only the receipts and expenses of the farm, but money paid by deceased to plaintiff, or on her order during those years.
The answer also alleged that a true accounting was made to plaintiff by the deceased yearly, or oftener.
The bar of the Statute of Limitations was pleaded against all items of plaintiff's demand which accrued prior to the year 1910.
Defendant set up a counterclaim upon allegations that deceased, during the years from 1910 to 1913, inclusive, paid out for expenses in conducting the farm and to plaintiff, or others upon her order, sums in excess of his total receipts from the farm during those years, to the amount of $ 1140.75, and that these payments were made at the request of plaintiff. An itemized account was attached as an exhibit and referred to in the answer, which showed a balance due defendant, as administrator, of the amount aforesaid.
On account of the multitude of transactions involved in plaintiff's demand, ranging over twenty years, the case was referred by the circuit court to Hon. L. G Blair, who was directed to take testimony regarding the various items of the demand, make a full statement of the account between the parties, together with his findings thereon, and return the same with the evidence, into court. The evidence consisted of the testimony of nearly fifty witnesses and about two hundred and fifty exhibits, in the form of letters which passed between plaintiff and deceased, and checks drawn by her on her bank account, or by deceased for payments to her or others by her order, or for the expense of the farm. The referee found, and the numerous letters in...
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