Hussman v. Druege

• Decision Date: 07 December 1915
• Docket Number: No. 14041.,14041.
• Parties: HUSSMAN v. DRUEGE.
• Court: Missouri Court of Appeals

181 S.W. 118

HUSSMAN v. DRUEGE.

No. 14041.

St. Louis Court of Appeals. Missouri.

December 7, 1915.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by C. E. Hussman against Henry Druege. From a judgment sustaining defendant's demurrer to plaintiff's evidence, plaintiff appeals. Reversed.

J. K. Lord, Jr., of St. Louis, for appellant. Bass & Bass, of St. Louis, for respondent.

REYNOLDS, P. J.

This action was commenced before a justice of the peace, April 24th, 1911, on an account, the last item of which bears date February 3rd, 1906. Plaintiff recovering before the justice, defendant appealed to the circuit court, where the case was tried anew before the court, a jury being waived.

The account filed purports to be a running account for stamps and "covers," sold between February 6th, 1904, and February 3rd, 1906, and totals $210.08 on which credits amounting to $126.37 are entered, leaving a balance claimed to be due of $83.71, with interest from February 3rd, 1906. The debit of February 3rd was $25 for "covers" and there was a credit for $25 cash paid on the same date. The item immediately preceding that of February 3rd, 1906, was a debit of $17.00 of date December 20th, 1905. Plaintiff was a dealer in foreign postage stamps and "covers"; defendant was a collector of such stamps.

There were no written pleadings on the part of defendant, but in the circuit court he appears to have interposed the defense of the five-year statute of limitations, to which plaintiff was permitted to add to his statement of account filed matter by way of reply to the effect that the running of the statute was tolled by the absence of defendant from the state "for several months without having a usual place of abode where service could be had on him and has concealed, absconded and by other improper acts prevented the commencement of the suit within five years."

The evidence given by plaintiff in his own behalf was to the effect that holding an account against the defendant, the last item of which, as before stated, was December 29th, 1905, and which then amounted to $185.08, on which up to that time there had been paid $101.37, leaving $83.71 then due, defendant had come into his store on February 3rd, 1906, and paid him $25, which he told plaintiff to credit to his account; that plaintiff had "then" and on that date, sold defendant goods to the amount of $25 and that defendant said that he would come in and pay the balance of the account in sums of $25 or so at a time, as he had been doing in the past. Defendant then told plaintiff he was going to Europe on a visit to his mother.

A witness for plaintiff testified that defendant had gone to Germany about the first part of April, 1906, and he "imagined" he was gone about four months; came back "some time in the summer." This witness, however, further testified that he had gone with defendant to plaintiff's store on February 3rd, 1906; that defendant then "bought some covers from plaintiff and paid him $25, saying at the time that he was paying him for what he was then getting."

It was admitted that defendant is a single person and had no family residing in the state of Missouri.

At the close of plaintiff's evidence defendant demurred on the grounds, first, that plaintiff's cause of action accrued more than five years before he commenced this action and that the action was barred by the statute of limitations; second, that plaintiff had failed to prove that the account herein sued upon was a running, open account; and, third, that plaintiff had failed to show that the last item of the account, that is the debit and credit of February 3rd, 1906, is connected by agreement, contract or understanding with the rest of the account sued on. The court sustained this demurrer, plaintiff excepting, whereupon plaintiff took a non-suit with leave, etc. Moving to set this aside and excepting to the action of the court in overruling the motion, plaintiff has duly perfected his appeal.

In a former opinion in this case, rendered at this term, we held that when a case is tried before the court sitting as a jury, a demurrer to the evidence is improperly sustained if plaintiff has given any substantial evidence which, in a jury trial, would entitle him to go to the jury referring to Vincent v. Means, 184 Mo. 327, loc. cit. 340 et seq., and cases there cited, 82 S. W. 96. We accordingly reversed and remanded the case. Learned counsel for appellant, after that opinion had been handed down, filed a motion for its modification, asking us to pass on the question covered by the first ground assigned in the demurrer, namely, that the statute of limitations barred the cause of action, notwithstanding the absence of defendant from this state on a visit to his mother in Germany.

We repeat what we previously said, namely, that the demurrer should not have been sustained, and add that this is so, even with the above point involved.

The question of the nature and character of defendant's absence is a question of law and fact, the latter to be found by the jury, if the trial is to the jury, under proper instructions. For the general rule here applicable see Johnson v. Smith, 43 Mo. 499; Venuci et al. v. Cademartori, 59 Mo. 352; Miller v. Tyler, 61 Mo. 401; Rhodes v. Farish, 16 Mo. App. 430; State ex rel. Shipman v. Allen, 132 Mo. App. 98, loc. cit. 113, 111 S. W. 622. That is to say, had defendant retained a residence in this state, notwithstanding his visit to Germany? Section 8057, Revised Statutes 1909, giving rules for the construction of statutes, by paragraph 17, p. 2519, reads:

"The place where the family of any person shall permanently reside in this state, and the place where any person having no family shall generally lodge, shall be deemed the place of residence of such person or persons respectively." Stone v. Stone, 134 Mo. App. 242, loc. cit. 244, 113 S. W. 1157.

It clearly appears from this that an unmarried man may have a residence, even if he is not a householder. Whether he has such is a question of fact, on which the jury, if the case is tried to a jury, should be instructed. State v. Keating, 202 Mo. 197, loc. cit. 209, 100 S. W. 648.

With a very meager abstract before us, we are unwilling to express an opinion on the law to be here applied, or as to the proper instruction to be given on this branch of the case. As we are remanding it, on a new trial, the facts may be presented more fully and require a different treatment. On the record before us, we have no more power, as an appellate court, than had the circuit court, to pass on the facts as a question of law. Of course, if under the second and third grounds of the demurrer the jury or court find that the purchase of February 3rd, 1906, was paid for at the time and the $25 then paid was not to be applied on the current account, defendant's absence will avail nothing, for unless the purchase and payment of February 3rd, 1906, was on running account, the action is barred.

As before ordered, the judgment of the circuit court is reversed and the cause remanded, this opinion being substituted for that heretofore rendered.

NORTONI and ALLEN, JJ., concur.

ALLEN, J. (concurring).

I think it entirely clear that the demurrer to...