Fowlis v. Heinecke

• Decision Date: 12 March 1930
• Docket Number: 6574.
• Citation: 287 P. 169,87 Mont. 117
• Parties: FOWLIS v. HEINECKE et al.
• Court: Montana Supreme Court

287 P. 169

87 Mont. 117

FOWLIS v. HEINECKE et al.

No. 6574.

Supreme Court of Montana

March 12, 1930

Appeal from District Court, Fergus County; Edgar J. Baker, Judge.

Action by J. H. Fowlis against William J. Heinecke and another individually and as copartners. Judgment for plaintiff against defendant named, and such defendant appeals.

Affirmed.

E. K Cheadle, of Lewistown, for appellant.

Ayers & Ayers, of Lewistown, for respondent.

ANGSTMAN J.

Complaint was filed in this action on October 2, 1925, on open account. On October 8, 1925, answers were filed by defendants, and a demand was made upon plaintiff to furnish an itemized statement of the account. The plaintiff did not furnish such statement, but filed a reply on April 1, 1926. The case was set for trial on February 24, 1927. On February 15, 1927 plaintiff made application to amend the complaint. This motion was granted, and the amended complaint was filed August 31, 1927. A second amended complaint was filed on January 9, 1928, based upon an account stated. Whether the first amended complaint was on open account or account stated we are not advised, since it is not before us. Issue being joined on the second amended complaint by separate answers and replies, the cause came on for trial on February 25 1929. The cause was tried to the court without a jury. Judgment was entered for plaintiff against defendant William J. Heinecke, from which he appealed.

At the trial, the defendants interposed an objection to the introduction of any evidence under the second amended complaint upon the ground that it states a cause of action differing from that set forth in the original complaint, and that it was improperly amended after the time had elapsed within which to deliver a copy of the account as provided in section 9167, Revised Codes 1921. The propriety of permitting the filing of the second amended complaint under the circumstances here shown is the only question presented.

It is the contention of defendant William J. Heinecke that the order of the court granting leave to file the second amended complaint after the lapse of the five-day period mentioned in section 9167 served to defeat the purpose of the statute, and to deprive him of the benefits afforded by it.

Section 9167 provides: "It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days, or such further time as the court may allow, or may be agreed to by the parties, after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular." The term "account" is used in this section interchangeably with "items of account." Moran v. Ebey, 39 Mont. 517, 104 P. 522.

As applied to this case, the statute required plaintiff to deliver to defendants a copy of the items of the account. This not having been done, plaintiff was precluded from giving evidence of such items. But the statute does not preclude the introduction of evidence showing an account stated. In fact, in an action on an account stated, the provisions of this section have no application. Martin v. Heinze, 31 Mont. 68, 77 P. 427.

The penalty under the statute for failure to furnish the items of the account, when applied to the facts here shown, is limited to depriving the party of the right to introduce evidence of the items of the account. There is no prohibition in the statute against the introduction of evidence on a stated account.

On the record here presented, the statute of limitations had not run against the account stated at the time of the filing of the second amended complaint (O'Hanlon Co. v. Jess, 58 Mont. 415, 193 P. 65, 14 A. L. R. 237), and plaintiff could have dismissed his original action and filed a new complaint, as for an account stated, and defendants would have had no cause to complain. Furthermore under the decisions of this court, plaintiff could have proven the cause of...