Hanson v. Jones

• Decision Date: 09 February 1886
• Citation: 20 Mo.App. 595
• Parties: C. HANSON, Respondent, v. T. H. JONES, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 595

C. HANSON, Respondent,

v.T. H. JONES, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.

Affirmed.

W. E. BOWDEN and THOMAS W. KERSEY, for the appellant: This being a partnership account, Kelly should have been made a party plaintiff. Story on Part. 22, 24, 101; Rev. Stat., sect. 3466; The State v. Sanderson, 54 Mo. 203. The only method known to the law for reopening a settlement by showing fraud, errors, or mistakes, is by a direct proceeding in equity for that purpose, and the petition for that purpose must charge and set forth the fraud, errors, or mistakes relied upon. Rev. Stat., sect. 2837; Kronenberger v. Binz, 56 Mo. 121; 1 Story Eq. (3 Ed.) 524, 529. The court erred in permitting the plaintiff, under the original pleadings in the cause, to introduce testimony showing mistakes in settlement of the account sued on, prior to suit on same and showing a stated sum still due the plaintiff, and that the defendant had acknowledged the indebtedness, and agreed to pay the same. Rev. Stat., sects. 3058, 3060; Clark v. Smith, 39 Mo. 498; Webb v. Tweedie, 30 Mo. 488; Moore v. McCullough, 8 Mo. 401; Stoughton v. Lynch, 2 Johns. Ch. 218; Hardwick v. Vernon, 4 Vesey, 411; Koegel v. Givens, 79 Mo. 77. The court erred in permitting the plaintiff to amend his statement. Said amendment changed the form of action from assumpsit to an action on account stated, which is not permissible. Rev. Stat., sects. 3028, 3050; Webb v. Tweedie, 30 Mo. 488; Hansberger v. Pac. Ry. Co., 43 Mo. 196; Beattie v. Hill, 60 Mo. 72; Gist v. Loring, 60 Mo. 487.

O. H. TRAVERS, for the respondent: On appeal from a judgment of the justice any amendment may be made which tends to insure substantial justice, and which does not change the cause of action. Beattie v. Hill, 60 Mo. 72; Gilmore v. Dawson, 64 Mo. 310; Rev. Stat., sect. 3060; House v. Duncan, 50 Mo. 453. And any amendment which might have been made before the justice, may be made in the circuit court. Transier v. Ry. Co., 54 Mo. 189. Kelley conducted the business for the respondent, and for his services the respondent paid him a portion of the profits. This single circumstance did not constitute a partnership. McCauley's Adm'r v. Cleveland, 21 Mo. 438; Campbell v. Dent, 54 Mo. 325; Lucas v. Cole, 57 Mo. 143; Stoallings v. Baker, 15 Mo. 481; Wiggins v. Graham, 51 Mo. 17; Donnell v. Harshe, 67 Mo. 170.

THOMPSON, J., delivered the opinion of the court.

This was an action begun before a justice of the peace for a balance of $83.95, alleged to be due for goods sold the defendant. On the trial in the circuit court it appeared substantially that the plaintiff and the defendant had charges against each other; that the plaintiff's agent in charge of his business and the defendant met and settled the account on the plaintiff's books, “and balanced the books,” whereby a balance of fifty-four dollars was found to be due from the plaintiff to the defendant, which the plaintiff's agent thereafter paid to the defendant at several different times; that thereafter the plaintiff, on an inspection of the books, discovered that the account had been erroneously settled; that the errors consisted in crediting the defendant twice with the sum of $78.95, and by making another error of five dollars in the defendant's favor in adding a column, both of which errors were patent upon the face of the books. In other words, the books themselves, upon the basis of the entries in which the account was stated, showed that instead of fifty-four dollars being due from the plaintiff to the defendant, the sum of $83.95, the amount sued for, was really due, after adding the fifty-four dollars paid under the erroneous settlement, from the defendant to the plaintiff.

Down to this point there was no conflict in the testimony. The defendant does not swear that the amount sued for is not really due; but he plants himself upon the settlement, and he says that the plaintiff can not recover because he has not brought his action in the proper form to set aside this settlement for error therein; that, in order to recover, it was necessary for him to recite in his statement of cause of action the settlement, to plead the mistake, to ask for a rectification of the mistake, and for a judgment for the balance which he claims to be due.

That is substantially his only defence, and it amounts to simply this, that he says to the plaintiff: “Because your agent and I made a mistake in striking the balance shown by your books of account, on the basis of which we made our settlement, and the items of which were consequently admitted to be correct by both parties, I am entitled to keep your money, which I have got by reason of that mistake, and you are to be driven to a bill in equity to get it from me.” This is certainly a most unconscionable defence set up against an honest demand.

Considerable is said in favor of this defence respecting the conclusive character of an account stated. That is not questioned. But where an account has been stated and the supposed balance paid, and afterwards an error is discovered on the face of the account itself, such as crediting a single item twice, or adding a column of figures wrongly, are the business community to be told that the merchant must file a bill in equity in order to have such an error corrected? In every such case there is an implied obligation upon both parties, ex æquo et bono, to rectify any mistakes which may be discovered in stating the account, and an action at law will lie to recover the balance paid by reason of such a mistake, or to recover whatever appears to be due to the plaintiff upon a correction of the mistake. Davis v. Krum, 12 Mo. App. 279; Budd v. Eyermann, 10 Mo. App. 437.

This being the law, in order to support the action it was not necessary for the plaintiff to prove a subsequent express promise on the part of the defendant to correct the mistake and pay the amount actually due, because the law on principles of justice implies such a promise. Nevertheless the plaintiff distinctly testifies that he called the attention of the defendant to the mistake; that the defendant admitted it and agreed to pay the balance due, namely: the amount sued for. The defendant, in his testimony, denied this, and this was the only issue which the court put to the jury. It was the only matter in issue; for, by meeting together and settling the account on the basis of the entries in the plaintiff's books, the defendant had confessed the correctness of those entries, at...