Interstate Distributing, Inc. v. Freeman

• Court: Missouri Court of Appeals
• Writing for the Court: GARRISON
• Citation: Interstate Distributing, Inc. v. Freeman, 904 S.W.2d 481 (Mo. App. 1995)
• Decision Date: 30 June 1995
• Docket Number: No. 19664,19664
• Parties: INTERSTATE DISTRIBUTING, INC., Plaintiff-Appellant, v. Darrell H. FREEMAN, Defendant-Respondent.

Page 481

904 S.W.2d 481

INTERSTATE DISTRIBUTING, INC., Plaintiff-Appellant, v. Darrell H. FREEMAN, Defendant-Respondent.

No. 19664.

Missouri Court of Appeals,

Southern District,

Division Two.

June 30, 1995.

Motion for Rehearing or Transfer to

Supreme Court Denied July 21, 1995.

Application to Transfer Denied

Sept. 19, 1995.

William T. Weidle, Jr., St. Louis, for plaintiff-appellant.

Kenneth W. Johnson, Springfield, for defendant-respondent.

GARRISON, Presiding Judge.

Interstate Distributing, Inc. (Appellant) appeals from an adverse judgment entered in its suit against Darrell H. Freeman (Respondent) to recover money allegedly owed for the purchase of a piece of lawn care equipment. On this appeal it complains that the trial court failed to give it the benefit of evidence that Respondent retained statements of the account for an unreasonable time without objection; failed to admit a copy of a statement of the account; and improperly interpreted other evidence.

Appellant's petition was entitled "Petition On An Open Account." It alleged that Respondent "entered into a contract with Plaintiff and opened an account with Plaintiff on or about May 13th, 1991"; that "[a]t the special instance and request of Defendant, Plaintiff sold and delivered to Defendant certain goods and materials of the value and for the price of ... ($6,282.09) to be paid by Defendant to Plaintiff on demand"; that a "copy of Plaintiff's statement is attached ... as 'Exhibit A' "; that "[t]he prices charged for the goods and materials are, and were at the time said goods were sold and delivered, reasonable and proper"; and that "Defendant promised and agreed to pay the same and though often requested to do so, Defendant has failed and refused, and still fails and refuses to pay the same and every part thereof."

The only witness who testified was Appellant's comptroller and assistant secretary who had no firsthand knowledge of the transaction. He identified Appellant's Exhibit 1 (apparently the same as Exhibit A attached to the petition) as a copy of a statement sent to Respondent, but the trial court sustained Respondent's objection based on the "best evidence rule" and did not admit it in evidence.

The only other documentary evidence admitted was a photocopy of a "pick-ticket" and a carbon copy of the same document. The "pick-ticket" is a document signed when the merchandise is either shipped or picked up by a customer. In this case, both the photocopy and carbon copy indicate that merchandise described only by an item number was ordered on March 15, 1991 and contained the following signature: "Bob Morgan by/Darrell Freeman." ¹ The photocopy indicates that the item was "shipped" on March 19, 1991. The "pick-ticket" form has a box to identify the purchaser and also the party to whom it is to be shipped. In the instant case, the carbon copy shows that it was sold to Bob Morgan and was to be shipped to Freeman Landscape. The photocopy, however, had been changed to say that it was charged to the account of Bob Morgan and was sold to Freeman Landscape. Neither contained a price for the merchandise allegedly sold.

A judgment was entered in favor of Respondent after a trial before the court. This appeal followed.

As in any court-tried case, we review the case upon both the evidence and the law, giving due regard to the opportunity of the trial court to judge the credibility of witnesses. Rule 73.01(c)(1) and (2). ² The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

As we construe Appellant's first point on appeal, it complains that the trial court erroneously applied or declared the law in failing to give it a judgment based on evidence that Respondent retained statements of the account for unreasonable periods of time without objection. It contends that this constituted an express or implied promise to pay which was sufficient to entitle it to a judgment even in the absence of documentary evidence.

This was an action on an open account, which is an action at law to recover for services performed or property sold and delivered. Helmtec Industries, Inc. v. Motorcycle Stuff, Inc., 857 S.W.2d 334, 336 (Mo.App.E.D.1993). It is based on contract and, therefore, depends upon proof of an offer, acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. Id. at 335; Welsch Furnace Co. Inc. v. Vescovo, 805 S.W.2d 727, 728 (Mo.App.E.D.1991). In the instant case, there was no evidence that the amount sought by Appellant was correct or that it was reasonable.

Appellant, in this point, seeks to avoid that deficiency by relying on evidence that after receiving statements of the account, Respondent retained them for a long period of time without objection. In this respect, Appellant seeks to apply rules applicable to accounts stated.

An account stated is a new cause of action arising from prior monetary transactions. Ozark Mountain Timber Products, Inc. v. Redus, 725 S.W.2d 640, 648 (Mo.App.S.D.1987); Chisler v. Staats, 502 S.W.2d 424, 426 (Mo.App.W.D.1973). It is an agreement between parties, having had previous financial transactions, that a balance struck is correct and due between them, and a promise by the debtor, either express or implied, to pay the balance. Ozark Mountain Timber Products, Inc. v. Redus, 725 S.W.2d at 648. In the absence of an express promise to pay, the retention of the account rendered for a reasonable time without objection admits to the account and implies a promise to pay. Id.

An open account may be proven by evidence of an account stated. Ayers Plastics Co. v. Packaging Products, 597 S.W.2d 177, 180 (Mo.App.W.D.1979). In particular, evidence in support of an account stated may be admissible as an admission of correctness of the account. Id. See also Welch-Sandler Cement Co. v. Mullins, 31 S.W.2d 86, 90-91 (Mo.App.W.D.1930).

In the instant case the witness testified that the invoice was mailed to Respondent and that in subsequent conversations he said he would pay it when he received a warranty credit on other goods which he claimed to be entitled to. In the absence of the statement which was excluded from evidence, however, there was no evidence of the amount charged for the piece of equipment allegedly sold to Respondent. Evidence of failure to object to an invoice or statement without evidence of its...