Kansas City Commercial Photo View Company v. Kansas City Bridge Company
| Decision Date | 23 May 1921 |
| Citation | 233 S.W. 947,208 Mo.App. 255 |
| Parties | KANSAS CITY COMMERCIAL PHOTO VIEW COMPANY, Respondent, v. KANSAS CITY BRIDGE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Original Opinion of May 23, 1921, Reported at: 208 Mo.App. 255.
Motion overruled.
ON MOTION FOR A REHEARING.
It is claimed that the foregoing opinion is in conflict with the opinion in the case when it was formerly here (K. C Photo Co. v. K. C. Bridge Co., 195 S.W. 1051.) We fail to so find. It appears from the opinion in the former appeal that the question of the account being stated, and the Statute of Limitations affecting it as such was not an issue, for the court said at l. c. 1052. "But defendant did not try the case on that theory" (that is that the account became stated by its retention by defendant). However, it appears that there was an issue as to whether the $ 14 item that was necessary to save the whole account from the statute was a part of the running account, that is, whether or not the first items were settled and agreed upon before the transaction giving rise to the last item, and plaintiff's instructions were declared erroneous in regard to that point. A reading of the former opinion fails to disclose that the court had before it the question as to whether retention of an account by the debtor could be used by him to defeat the debt by using the Statute of Limitations in connection with the fact of retention. The court in the concluding paragraph in the former opinion was careful not to declare that the first items of the account became an account stated.
It is also insisted that the evidence was not undisputed; that defendant filed a general denial and that, although there was no testimony except on behalf of plaintiff, the facts were for the jury to decide. This is a new contention in the case. The only witness in the case was Bowen and appellant submitted this appeal originally on the theory that what Bowen said was true and that under his testimony defendant was entitled to judgment as a matter of law. In its brief defendant stated:
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