Elsworth Coal Co. v. Quade

• Decision Date: 03 January 1888
• Citation: 28 Mo.App. 421
• Parties: ELSWORTH COAL COMPANY, Respondent, v. CHARLES QUADE, Appellant.
• Court: Missouri Court of Appeals

28 Mo.App. 421

ELSWORTH COAL COMPANY, Respondent, v. CHARLES QUADE, Appellant.

Court of Appeals of Missouri, St. Louis.

January 3, 1888

APPEAL from the St. Louis Circuit Court, HON. AMOS M. THAYER, Judge.

Affirmed.

F GOTTSCHALK, for the appellant: The petition fails to state a cause of action. Stix v. Matthews, 75 Mo. 96; Clements v. Yeates, 69 Mo. 625; Field v Railroad, 76 Mo. 614; Pfleger v. Weltne, 21 Mo.App. 580; Saulsbury v. Alexander, 50 Mo. 142; Staley v. Wallace, 21 Mo.App. 128; State v Roberts, 62 Mo. 388. Books of accounts are not evidence. Hissrick v. McPherson, 20 Mo. 310; Anderson v. Volmer, 83 Mo. 403; Cozzens v. Barrett, 23 Mo. 544; Hanson v. Jones, 20 Mo.App. 587. If plaintiff made a mistake in paying the money, it ought to make it appear that it was not equitably due. Foster v. Kirby, 31 Mo. 496. The question is whether the plaintiff has paid money to defendant by mistake, which is not rightfully his. Dobson v. Winner, 26 Mo.App. 335.

MILLS & FLITCRAFT, for the respondent: The petition is consistent and states a cause of action. The evidence supports the cause of action stated. The petition follows Hanson v. Jones (20 Mo.App. 596), and Lyle v. Shinnebarger (17 Mo.App. 76). The books were shown to the jury as the only evidence that the entry of the payment of $923.64 was never made on the company's books, and that the amount paid, which was conclusively shown to have been paid to Quade by the voucher signed by him, was not considered in the final settlement closing out the dealings with the Danville office. The voucher proved the payment. The face of the books showed the mistake and how the mistake originated. The books were not offered to prove any item on the books as against Quade. As defendant's instructions given do not appear in the record, this court must presume that they were correct, and sufficiently presented to the jury the issues on behalf of the defendant.

OPINION

THOMPSON J.

The petition states that, on or about the twenty-second day of March, 1884, the defendant had an accounting with the plaintiff touching certain dealings previously had between them, wherein it was found that there was due the plaintiff the sum of $68.70, which the defendant thereupon paid; that, by mistake of both parties, there was not considered in said accounting the sum of $923.64, which the plaintiff had paid to the defendant on the first day of June, 1883; that this item was entirely overlooked in said accounting; that if this item had been included in said accounting, the defendant would have owed the plaintiff, after paying off the said $68.70, the full sum of $923.64; that the defendant was thereupon notified of said mistake and omission in the accounting, and that there still remained a balance due from the defendant to the plaintiff of $923.64, which amount the defendant, at that time, promised to pay; but that the defendant, though often requested, has failed to pay the same.

The answer is, first, a general denial, and, secondly, a counter-claim.

There was a trial by jury, which resulted in a verdict in favor of the plaintiff for the amount claimed in its petition, with interest, and a verdict against the defendant on his counter-claim. From the judgment entered on this verdict the defendant prosecutes this appeal. No error is assigned by the defendant touching the disposition of the counter-claim, and it may, therefore, be laid entirely out of view.

I. The first error assigned is, that the petition states no cause of action. We overrule this assignment of error with the observation that the petition so plainly states a good cause of action that the point is not worthy of any discussion. Hanson v. Jones, 20 Mo.App. 595, 598; Lyle v. Shinnebarger, 17 Mo.App. 66; Davis v. Krum, 12 Mo.App. 279; Budd v. Eyermann, 10 Mo.App. 437; McDonald v. Lynch, 59 Mo. 350. The petition states a good cause of action in a cumulative form. First, it recites a state of facts which, if true, renders it incumbent upon the defendant, as a matter of conscience and fair dealing, to rectify the mistake in the settlement, and to pay to the plaintiff the amount which would have appeared to be due upon a proper settlement had the mistake not been made. Secondly, it states that, when the attention of the defendant was called to the mistake, he admitted that it had been made and promised to rectify it and to pay the amount which, but for the mistake, would have appeared upon a final account to be due. It thus counts upon the promise which the law, ex aequo et bono, raises in such a case, and moreover, it charges an express promise on the part of the defendant in conformity with the promise which the law implies.

II. The defendant contends that it does not appear, by any allegations of the petition, that the accounting had between the parties was intended to include all the dealings between them, so that the inference is not excluded, that the accounting might have been of matters outside of said prior payment. It is true that this does not appear by any express averment, but it does appear by necessary inference from the statement that, by mutual mistake, the sum herein sued for was not considered in said accounting.

III. The defendant next contends that there is a failure of proof in this, that the mistake, if any, is shown by the evidence to have occurred in June, 1883, and not in March, 1884, as charged in the petition. The facts shown are, that the credit of $923.64, if plaintiff was entitled to it at all, should have...