Klene v. Campbell
| Decision Date | 03 June 1919 |
| Docket Number | No. 15537.,15537. |
| Citation | 213 S.W. 520 |
| Parties | KLENE v. CAMPBELL et al. |
| Court | Missouri Court of Appeals |
Action by Benjamin J. Klene against George C. Campbell and R. S. England. Judgment for last-named defendant, and plaintiff brings error. Reversed and remanded.
Albert Miller, of Hillsboro, for plaintiff in error.
P. S. Terry, of Festus, for defendants in error.
On August 17, 1914, plaintiff instituted this action against George C. Campbell and R. S. England, in which the amount demanded is $344.54, with interest at 6 per cent. from May 2, 1911, and for costs. The defendant England was duly served but the defendant Campbell was neither served nor appeared in person or by counsel. The defendant England answered, admitting that plaintiff had rendered some service for defendants prior to June 17, 1907, but denying that any services were rendered for defendants or any money spent by plaintiff for defendants, or that any payments were made upon the demand of plaintiff sued for within 5 years next before the filing of the petition. For another defense it is averred that on and prior to November 17, 1908, defendants paid plaintiff all amounts due him. By another count the five-year statute of limitations is pleaded. Another defense is that plaintiff, while representing defendants, obtained possession of $1000, the property of the Keystone Copper Company, and at the instance and request of plaintiff defendants caused an attachment to be brought against that company and at the request of plaintiff, defendants caused the $1000 to be garnished in the hands of plaintiff; that on March 26, 1909, plaintiff was required and requested by another attorney then representing defendant, and by defendant himself, to pay into court the $1000 so garnished by defendants; that on March 26, 1909, plaintiff informed this defendant that he had spent the $1000 referred to and could not at that time produce it and on that 26th of March, 1909, offered, contracted and agreed to buy the interest and did buy the interest of defendants in that claim and agreed, for said interest of defendants, to furnish all court costs, legal expenses and attorneys fees for the prosecution of the claim against the Keystone Copper Company, and to give defendants in payment of their interest in the claim all services and cancel all prior obligations then due plaintiff from defendants, providing defendants would sell their interest in the claim against the Keystone Copper Company and plaintiff as garnishee to plaintiff and furnish all truthful testimony that this defendant could personally give; that relying on this offer, proposition, agreement and contract defendants sold, assigned and transferred to plaintiff all their interest in the suit and claim against the Keystone Copper Company and against plaintiff, as garnishee, and did furnish all the testimony required by plaintiff, and plaintiff has accepted said interest and service of defendant in full payment and discharge and satisfaction of the cause of action mentioned in plaintiff's petition.
The reply was a general denial.
At a trial before the court and a jury there was a verdict in favor of defendant England and judgment accordingly, from which plaintiff has duly sued out from this court his writ of error.
The principal contention in the trial of the case was as to dates of payment and as to the assignment of the claim referred to as against the Keystone Copper Company.
At the instance of defendant England the court gave five instructions. Several of them are to the effect that the services must all have been rendered in connection with one contract. That is not correct. If there was a running account between the plaintiff and the defendant and Campbell, even on several different transactions, the statute of limitations would commence to run from the accrual of the last item in the account.
Another instruction as to the effect that if...
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Scanlon v. Kansas City
...Chapman v. Curric, 51 Mo. App. 40; Berkbigler v. Milling Co., 275 S.W. 599; 23 C.J. 110, sec. 1918; Combs v. Smith, 78 Mo. 32; Klene v. Campbell, 213 S.W. 520. (3) Defendant's demurrer was properly refused, the evidence failing to disclose that plaintiff was guilty of contributory negligenc......
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Scanlon v. Kansas City
... ... Currie, 51 Mo.App. 40; ... Berkbigler v. Milling Co., 275 S.W. 599; 23 C. J ... 110, sec. 1918; Combs v. Smith, 78 Mo. 32; Klene ... v. Campbell, 213 S.W. 520. (3) Defendant's demurrer ... was properly refused, the evidence failing to disclose that ... plaintiff was guilty ... ...
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