F. G. Barton Cotton Co. v. Vardell

• Decision Date: 13 August 1925
• Citation: 275 S.W. 62,217 Mo.App. 691
• Parties: F. G. BARTON COTTON COMPANY, Appellant, v. B. N. VARDELL, Respondent. *
• Court: Missouri Court of Appeals

275 S.W. 62

217 Mo.App. 691

F. G. BARTON COTTON COMPANY, Appellant, v. B. N. VARDELL, Respondent. *

Court of Appeals of Missouri, Springfield

August 13, 1925

Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.

AFFIRMED.

Judgment affirmed.

Hugh B Pankey and Hal H. McHaney, both of Kennett, for appellant.

(1) The court erred in not sustaining appellant's motion to strike out respondent's counterclaim. 1 Under the pleadings it was admitted that the promissory note sued on was an unconditional written promise to pay a definite amount at a stated time in settlement of a past pecuniary obligation and same amounted in law to an account stated. Powell v Pacific R. R. Co., 65 Mo. 658, 661; Locke v. Woodman et al., 216 S.W. 1006, 1008; Locke v. Woodman et al., 208 Mo. 255, 225 S.W. 352; Kansas City C. P. View Co. v. Kansas City Bridge Co., 233 S.W. 947; Risinger v. Begley, 190 S.W. 418; Quint v. Loth-Hoffman, 233 S.W. 92, 207 Mo.App. 391; Adam Roth Co. v. Hotel, etc., Co., 183 Mo.App. 429, 166 S.W. 1125; 2. The mere offering to give a note in settlement of a claim is sufficient evidence to establish an account stated. Borkowski v. Janicke, 170 Mo.App. 610, 157 S.W. 125, 126. 3. The theory of accounts stated applies be tween principal and factors. Dameron v. Harris, 281 Mo. 247, 219 S.W. 954, l. c. 957; McCord v. Manson, 17 Ill.App. 118. 4. It is not inconsistent with an account stated that it be coupled with a condition such as the debtor could pay when able. Quint v. Loth-Hoffman Co., 233 S.W. 92; Work v. Buch, 6 N.Y.S. 27. 5. (a) After an account is stated between creditor and debtor and the debtor does not except to same within a reasonable time such is evidence of debtor's assent to the stated account; the debtor in this case made no objection from December 20, 1920, to July 21, 1921, the date of his filing his answer in this cause. Dameron v. Harris, 281 Mo. 247, 219 S.W. 954; Koegel v. Givens, 79 Mo. 77; Dowell v. Railroad, 65 Mo. 658; McKensie v. Hall, 210 Mo.App. 1, 239 S.W. 154, 157; Bloss v. Aurora Milling Co., 207 Mo.App. 402, 229 S.W. 833, 835. (b) A delay of two weeks on the part of debtor to object, was held to show an acceptance of an account stated. Mulford v. Caesar, 53 Mo.App. 263, 269; 6. An account stated cannot be reopened except for accident, fraud or mistake, and none is pleaded or proved here. McCormick v. Interstate Consolidated Rapid Transit Co., 154 Mo. 191; McKensie v. Hall, 210 Mo.App. 1, 239 S.W. 154; Harris v. Janish, 226 S.W. 610; Dameron v. Harris, 281 Mo. 247, 219 S.W. 954; Barr v. Lake, 147 Mo.App. 252, 126 S.W. 755, 758. 7. Evidence of fraud, accident or mistake is inadmissible unless such matters are pleaded. Dameron v. Harris, 210 Mo.App. 1, 219 S.W. 954. (2) Because the court erred in admitting incompetent testimony. 1. Testimony of B. N. Vardell, Floyd Vardell, and Cleveland Goff relative to the values and sales price of cotton raised in certain neighborhoods without regard to their lack of knowledge of classification and grades of cotton. Bailey Ball Pumphrey v. Branham, 236 S.W. 379; Bailey Ball Pumphrey v. German, 213 Mo.App. 11, 247 S.W. 483. (2) Testimony of an isolated sale of cotton by witness Goff without any proof that the cotton then sold was of the same class or grade as respondent's cotton. Bailey Ball Pumphrey v. German, 213 Mo.App. 11, 247 S.W. 483. (3) The court erred in admitting any evidence relative to any transaction prior to the execution of the note, i. e. December 8, 1920, as the same was an account stated. Barr v. Lake, 281 Mo. 247, 126 S.W. l. c. 758; all cases cited under 1. (4) Because the court erred in refusing to give plaintiff's instruction numbered one which requested a directed verdict on the theory that under the evidence and under the pleadings the note sued on was an account stated. See all case cited under 1. Alexander v. Scott, 150 Mo.App. 213, 129 S.W. 991; Kansas City C. P. Co. v. Kansas City Bridge Co., 233 S.W. 946. (5) Because the court erred in giving respondent's instruction numbered one. 1. Because said instruction submitted facts not proven, i. e. question whether there was any consideration for the note, question whether note was merely given for accommodation and the question of intention. Locke v. Woodman, 216 S.W. 1008; Weigman v. Weigman, 261 S.W. 758; Fletcher v. K. C. Ry. Co., 221 S.W. 1070; Gunn v. Hemphill Lumber Co., 218 S.W. 978; (2) Because the instruction assumed a fact not proven, i. e. fact of a negligent sale, said instruction using the words, "which the defendant might have against the plaintiff for the negligent sale." Gunn v. Hemphill Lumber Co., 218 S.W. 978; Simmons v. Dunham, 203 S.W. 652; Stid v. R. R. 236 Mo. 382, 139 S.W. 172; McAtee v. Valandingham, 75 Mo.App. 45. (6) Because the court erred in giving respondent's instruction numbered two. 1. Because said instruction submitted facts not proven, i. e. a "specific instruction" of appellant to sell said cotton, a refusal of appellant to sell, and the date of respondent's alleged demand. Weigman v. Weigman, 261 S.W. 758; Fletcher v. K. C. Ry. Co., 221 S.W. 1070; Gunn v. Hemphill Lumber Co., 218 S.W. 978. 2. Because said instruction submitted the question of negligence and carelessness on part of appellant when there was no proof of same. Gunn v. Hemphill Lumber Co., 218 S.W. 978; Simmons v. Dunham, 203 S.W. 652; Stid v. Railroad, 236 Mo. 382, 139 S.W. 172; McAtee v. Valandingham, 75 Mo.App. 45. 3. Because said instruction placed an improper duty upon appellant, i. e., that it attempts to establish the negligence upon failure to sell upon the demand of respondent when in any event a factor would be allowed a reasonable time to sell after date of demand. Bailey Ball Pumphrey v. Branham, 236 S.W. 379.

F. M. Kinder, of Poplar Bluff, and Smith & Zimmerman, of Kennett, for respondent.

(1) The court did not err in overruling appellant's motion to strike out respondent's counterclaim. (a) The note was given by respondent without any idea or intention of settling the cotton account between the parties, but, on the contrary there was a positive agreement that the giving of the note would have nothing to do with the settlement of the cotton account later on. Appellant made no demand for payment, presented no statement of the account to respondent, and there never was any meeting of minds on the proposition of the note closing or settling the cotton account. Mo. P. Railway Co. v. Combs and Brother Com. Co., 71 Mo.App. 299; Fesse v. Blanke, 127 Mo.App. 431-2; Quint v. Loth-Hoffman Clo. Co., 233 S.W. 92, 207 Mo.App. 391; Kansas City Photo V. Co. v. K. C. Bridge Co., 233 S.W. 947; Niehaus v. Gillanders, 184 S.W. 950; Damerson v. Harris, 219 S.W. 955; McCormick v. Transit Co., 154 Mo. 191; 1 Cyc. page 382-q; 1 C. J., page 683, secs. 263-4; 1 C. J., page 708, S.W. 333. (b) Respondent's answer pleads facts which, if found to be true, would permit the filing of a counterclaim for damages growing out of the cotton transactions between the parties, since it was alleged, and proved, that the giving of the note was not to affect the cotton account, or transactions had thereunder. McCormick v. Transit Co., 154 Mo. 191; Dameron v. Harris, 219 S.W. 955; Niehaus v. Gillanders, 184 S.W. 950. (c) All the facts show that the parties never intended for the note to close the cotton account, and that the cotton account continued after, as before, the giving of the note. Authorities under 1 (a). (d) If it be contended that the fact that the note was executed lends credence to appellant's contention that the note was given in full settlement of the cotton account, or even makes a prima-facie case of an account stated, we contend that the allegations in respondent's answer raise the following issues: (1) The general issue of whether or not there was in fact an account stated. (2) Mistake in the purpose and use for which the note was asked for and procured. (3) The procurement of the note under such circumstances as to amount to a fraud upon respondent. (4) That certain matters, especially matters growing out of the cotton account, and the basis for respondent's counterclaim, were omitted, by express agreement, from the matter of the execution of the note. Niehaus v. Gillanders, 184 S.W. 950; Dameron v. Harris, 219 S.W. 955; Barr v. Lake 126 S.W. 755; White v. Storm, 236 Mo. 492. (2) The court did not err in the admission of the testimony given on the part of the witnesses, B. N. Vardell, Floyd Vardell and Cleveland Goff. (a) B. N. Vardell. The price of cotton was confined to the Memphis market and was proper. (b) Floyd Vardell. Bailey Ball Humphrey v. German, 247 S.W. 483. The testimony complained of was confined to his knowledge of cotton and the condition of the cotton shipped, when picked. Furthermore, the testimony was elicited, in the main, by appellant and it cannot now complain. (c) The testimony of this witness was offered to show what similar cotton brought on the Memphis market, and was competent to prove the market value of the cotton at Memphis, where respondent's cotton was shipped. Bailey Ball Humphrey v. German, 247 S.W. 483. (3) The admission of evidence relative to transactions prior to the execution of the note was not error, because respondent's answer put in issue the question of whether or not the note was given for and in settlement of the cotton account and was, in fact, an account stated. Niehaus v. Gillander, 184 S.W. 950; Cases cited under 1 (a). (4) Plaintiff's instruction number one was properly refused because respondent had the right to try the issues raised by his counterclaim. See Authorities under 1 (a). (5) (1) Respondent's instruction No. 1 was proper, because: (a) There was a conflict of evidence as to what was said and done at the time the note was executed,--a...