Hart v. John W. Rowan Plastering Co., 23132.

• Citation: 88 S.W.2d 264
• Decision Date: 03 December 1935
• Docket Number: No. 23132.,23132.
• Parties: HART et al. v. JOHN W. ROWAN PLASTERING CO., Inc.
• Court: Court of Appeal of Missouri (US)

88 S.W.2d 264

HART et al. v. JOHN W. ROWAN PLASTERING CO., Inc.

No. 23132.

St. Louis Court of Appeals. Missouri.

December 3, 1935.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Action by Herbert M. Hart, administrator of the estate of Max Berger, deceased, and another, as copartners doing business under the firm name and style of Max Berger Company, against the John W. Rowan Plastering Company, Incorporated. Judgment for plaintiffs, and defendant appeals.

Affirmed.

E. A. Poulton and Seneca C. Taylor, both of St. Louis, for appellant.

Luke E. Hart and W. T. O. Hart, both of St. Louis, for respondents.

SUTTON, Commissioner.

This is an action on an account commenced in the circuit court of the city of St. Louis on April 20, 1928, and made returnable to the June term, 1928, of that court.

The second amended petition, which was filed on May 27, 1931, alleges that plaintiffs, under a contract with defendant, entered into on November 27, 1926, furnished all labor and materials required in connection with the ornamental interior plaster work on a building then being erected in Pittsburgh, Pa.; that by reason thereof defendant became indebted to plaintiffs in the sum of $38,676.18; that defendant paid plaintiffs $33,850, leaving a balance due plaintiffs of $4,826.18; that plaintiffs demanded of defendant payment of said sum on September 6, 1927; and judgment is prayed for said sum of $4,826.18, together with interest thereon at the rate of 6 per cent. per annum from September 6, 1927, and costs.

Defendant's answer to the second amended petition, which was filed on June 4, 1931, denies generally the allegations of the petition, and alleges that defendant became indebted to plaintiffs for labor performed and materials furnished under the contract mentioned in said petition in the sum of $35,488.50, and that defendant has paid plaintiffs for the labor so performed and materials furnished by plaintiffs under said contract the sum of $34,197.24, leaving a balance due plaintiffs from defendant of $1,291.26, and that "defendant has tendered to plaintiffs said sum of $1,291.26, but the plaintiffs have neglected and refused to accept the same."

On May 11, 1933, plaintiffs filed a motion for judgment on the pleadings for $1,291.26, with interest and costs. On July 3, 1933, the court sustained said motion, and gave judgment in favor of plaintiffs against the defendant for the principal sum of $1,291.26, with interest from the date of the filing of the suit to the date of the filing of the answer, amounting to $242.10, making in the aggregate $1,533.36. Defendant appeals.

Defendant insists here that the court erred in charging defendant with interest, inasmuch as the answer avers that defendant tendered plaintiffs the amount it owed them, and they refused to accept it. But plaintiffs insist that the averments respecting the tender are insufficient to show a tender effective as a defense against the recovery of interest.

There is no question that interest runs on an account after demand of payment, or, in the absence of a...