Earls v. Earls

• Decision Date: 15 February 1916
• Docket Number: No. 1518.,1518.
• Citation: 182 S.W. 1018
• Parties: EARLS v. EARLS et al.
• Court: Missouri Court of Appeals

182 S.W. 1018

EARLS v. EARLS et al.

No. 1518.

Springfield Court of Appeals. Missouri.

February 15, 1916.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by W. L. Earls against G. W. Earls and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.

Watson & Livingston and C. C. Bland, all of Rolla, for appellant. J. J. Crites and Holmes & Holmes, all of Rolla, for respondents.

FARRINGTON, J.

The plaintiff (appellant) is the son of defendant W. J. Earls, the brother of defendant G. W. Earls, and the uncle of defendant G. W. Earls, Jr.; the defendant last named being a son of defendant G. W. Earls. The plaintiff brought suit for the sum of $667.55, which amount he alleged he was required to pay to J. B. Ray for the benefit of the defendants. He averred that as surety for the defendants he signed a promissory note payable to J. B. Ray, that the same was not paid by defendants, and that he as surety for the defendants was required to pay that amount for their benefit. The answer of W. J. Earls and G. W. Earls, Jr., was a general denial. The separate answer of G. W. Earls contained a general denial followed by counterclaims to which we will presently refer. Plaintiff testified to having paid the balance on the note for the benefit of the defendants, as did J. B. Ray, the payee in the note, and none of the defendants when on the witness stand denied plaintiff's statements as to his cause of action; indeed, defendant G. W. Earls practically admits that plaintiff paid this money on the note for him as alleged. The contest centers around the two counterclaims set up in G. W. Earls' separate answer, the testimony being conflicting and confusing as to the correctness of the items charged in the counterclaims and as to the credits entered on the account on which the counterclaims are based. The case was tried before a jury which returned the following verdict:

"We, the jury, find the issues for the defendants, and assess him one hundred dollars $100.00."

A judgment was entered on September 9, 1914, to the effect that defendants have and recover of the plaintiff the sum of $100 together with costs. On September 10, 1914, a motion for a new trial was filed by plaintiff which was continued to the December term, 1914. On December 19, 1914, before plaintiff's motion was acted upon by the court, the defendants came into court and remitted the $100 awarded them in the verdict and judgment. As stated, the judgment was entered of record in September, and it was never set aside, nor was any new judgment entered in December, after the motion for a new trial had been passed upon, to conform to the remittitur made. If this were the only error in the record, we could enter a proper judgment here, or reverse the judgment and remand the cause with directions to the circuit court to enter a proper judgment. See White v. Reitz, 129 Mo. App. 307, 108 S. W. 601. But as we do find that substantial error was committed, we shall, as was done in the case above cited, treat the appeal as properly here, and, in the interest of justice and expedition, point out the error so that it may be avoided in another trial.

The counterclaims filed in the separate answer of G. W. Earls are as follows:

"Further answering and by way of counterclaim, this defendant says that the plaintiff W. L. Earls is justly indebted to him in the sum of $912.11 in the following items, to wit, which have been a running account between the plaintiff and this defendant since the 8th day of September, 1907, with part payments from time to time thereon, as follows:

                W. L. Earls to G. Earls, Dr
                September 8, 1907, to six head hogs
                           at $8 per head ..                  $   48 00
                September 8, 1907, to 57 head hogs at
                           $6 per head ...                       342 00
                ..........., 1907, to the payment of
                           1 check paid to
                           Ernest Lenox
                           for W. L. Earls                        65 00
                October 3, 1908, to one lot of hay
                           and pasture
                           agreed on ...........                 450 00
                October 25, 1908, to one lot of merchandise
                           sold
                           and delivered to
                           W. L. Earls
                           gross price
                           agreed on.......                      387 20
                                                              _________
                  Total ..................................    $1,292 20
                

"The defendant further answering states that on the 25th day of October, 1909, one Marion Bailey paid for the plaintiff W. L. Earls to this answering defendant, on account, the sum of $83.09, and that on the 21st day of May, 1909 the plaintiff W. L. Earls paid the National Bank of Rolla for this defendant answering the sum of $500 on account, and that on the 7th day of June, 1912, W. J. Earls paid to this answering defendant the sum of $105 for the plaintiff; that the total amounts paid by the plaintiff to this defendant answering, on account, was $688.09, leaving a balance due this defendant so answering, on the running account aforesaid between plaintiff and defendant, the sum of $604.11.

"This defendant further answering says that the plaintiff W. L. Earls was justly indebted to one W. J. Earls in the following items, to wit: June 7, 1912, amount paid G. W. Earls for W. L. Earls at the instance and request of the said W. L. Earls, $105; September 27, 1912, to two mare colts sold by W. J. Earls to W. L. Earls, $100; ___, 1913, to cash borrowed from W. J. Earls by W. L. Earls, $103 — making a total indebtedness due the said W. J. Earls of the sum of $308.

"This defendant further answering says that about the 1st day of February, 1914, for a valuable consideration he purchased the account the plaintiff W. L. Earls owed to the said W. J. Earls, amounting to the sum of $308, and is now the owner of said indebtedness against the plaintiff W. L. Earls; that the total amount the plaintiff W. L. Earls now owes this defendant here answering is $912.11, for which amount, together with the costs of this suit, this defendant prays judgment against plaintiff."

The plaintiff did not file any pleadings in answer to the counterclaims, but the case was tried throughout by both sides as though a general denial had been filed to the counterclaims and as though a special plea of the five-year statute of limitations had been filed. This is shown by two instructions given by the court, which are as follows (the first one quoted being given at plaintiff's request, and the second at the request of the defendants):

"The court instructs the jury that the defendant G. W. Earls cannot recover on any of the items of his counterclaim if such items did not accrue within five years before filing this action."

"The court instructs the jury that, although you may find from the evidence that some of the items of defendants' counterclaim accrued more than five years prior to the filing of this suit, yet if you further find from the evidence that the plaintiff or any one by his direction has made any payments upon any of the items of such counterclaim within five years before the filing thereof, then in such case the item or items upon which said payments were made would not be barred by the statute of limitations."

We shall therefore review the case on the same theory as that adopted in the trial court, by not only the trial judge, but by both appellant and respondents as well. See Manzke v. Goldenberg, 149 Mo. App. loc. cit. 22, 129 S. W. 32; Hume v. Hale, 146 Mo. App. 659, 125 S. W. 871; Riggs v. Street Ry. Co., 216 Mo. 304, 115 S. W. 969; McMurray v. McMurray, 258 Mo. loc. cit. 416, 167 S. W. 513; Williams v. Railroad, 233 Mo. loc. cit. 676, 136 S. W. 304; Taylor & Sons Brick Co. v. Railroad, 213 Mo. loc. cit. 728, 729, 112 S. W. 59; National Tube Works Co. v. Ice Machine Co., 201 Mo. loc. cit. 64, 98 S. W. 620; Bettes v. Magoon, 85 Mo. 580; Guntley v. Staed, 77 Mo. App. 163; Price v. Town of Breckenridge, 92 Mo. loc. cit. 387, 5 S. W. 20.

It appears on the face of G. W. Earls' counterclaims that some of the items were barred unless saved by payments made by the plaintiff. On an examination of these counterclaims, the statement of his running account shown in the first counterclaim, it can be seen, bearing in mind that his counterclaims were not filed until May, 1914, that all the items charged against plaintiff in the years 1907 and 1908 are barred under the five-year statute of limitations, unless the plaintiff has by some act on his part stopped the running of the statute, and it is only claimed that the account is alive by reason of certain credits shown thereon as payments made by the plaintiff.

Before discussing these credits, we will examine the charges made in the statement against the plaintiff in the first counterclaim of G. W. Earls. There is no evidence in this record showing, or tending to show, that the parties ever treated the various amounts charged as constituting items of an open, mutual, and current account within the meaning of section 1893, R. S. 1909. Where parties have dealings with each other consisting of transactions of entirely different character, there must be some evidence tending to show an intention on their part to make such transactions part of a running account before they will be so treated, and this burden is on the party asserting that the transactions form part of a running account. And where there are charges and credits, it must be shown, as said in some of the cases cited below, that the items are morally connected with one another so that it is clear that each separate item is not meant to constitute a new and independent contract, or that the conduct of the parties makes it fairly inferable that it was their intention to have a future adjustment of their various transactions as of one account. It is held in the case of Thompson v. Brown, 50 Mo. App. 314, that whether there was an agreement, expressed or implied, to keep an account open, is a question for...