Kliethermes Motor Co. v. Cole Motor Service

• Decision Date: 01 March 1937
• Docket Number: 5797
• Citation: 102 S.W.2d 819
• Parties: Kliethermes Motor Company, Respondent v. Cole Motor Service, Inc., a corp., Appellant
• Court: Missouri Court of Appeals

102 S.W.2d 819

Kliethermes Motor Company, Respondent v. Cole Motor Service, Inc., a corp., Appellant

No. 5797

Court of Appeals of Missouri, Southern District

March 1, 1937

Appealed from the Circuit Court of Phelps County. Honorable J. E Barton, Judge.

For Appellant: E. W. Allison, of Rolla and James T. Blair, Jr. of Jefferson City.

For Respondent: H. Balkenbush, of Linn.

Perry T. Allen, F. J. Smith, J., Concurs. Fulbright, J., Not sitting.

OPINION

Perry T. Allen

Plaintiff filed suit in the Circuit Court of Osage County, on the 10th day of May, 1935, and on the 19th day of June, 1935 a change of venue was granted to Phelps County. On the 13th day of December, 1935, plaintiff filed its third amended petition, which is the petition upon which the cause was tried, before Judge R. K. Barton.

The petition is in three counts: The first count alleges that appellant owed respondent a balance due on an open running account of J. E. Cole and others, and alleges that appellant assured the indebtedness, and asks for judgment in the sum of $830.97.

The second count alleges that J. E. Cole executed a promissory note to respondent for $260.00, which it alleges appellant assumed; and further alleges that respondent was wholly without a remedy at law to collect counts one and two and invokes the aid of equity, so that full relief may be obtained. Count two further alleges that the corporation repudiated this agreement and that it was done to defraud respondent. It further states that it is wholly without an adequate remedy at law and asks the aid of the court in equity to impress upon the assets of the Cole Motor Service Inc., an equitable lien in favor of respondent.

Court number three alleges that appellant owed a balance on open account of $220.21. That this account had been carried with the plaintiff since the date of incorporation on February 14, 1931, up to and including January 2, 1933. That it way for servicing defendant's trucks, cars, furnishing parts, gas, oil, grease and labor as more particularly appeared from an itemized statement, marked plaintiff's exhibit "C" and side a part of plaintiff's amended petition.

The defendant filed a general denial to plaintiff's petition. The cause was tried before a jury, resulting in judgment for respondent on all three counts. Defendant filed motion for new trial, which was overruled and the cause comes to this court on appeal by defendant.

At the beginning of the trial appellant objected to the trying of the three counts as one suit, for the reason they were separate actions, dissimilar in their basis, and not similar in the application of the law thereto, which application the court refused to grant.

John Knoerr, bookkeeper for plaintiff, was first called to testify. Objection was made to any testimony on the ground that it was an at appt to collect a bill of a third person; and that it was an oral contract. This objection was overruled, Knoerr testified that he had worked as a bookkeeper for respondent; that he started to work in December, 1928 and ceased in April, 1933, respondent's attorney offered in court, duplicates of the purchase items making up the account. Witness examined the account of the Cole Motor service, and testified that he compared them with the book that was dept in the office of respondent; that the duplicate account was compared with the book at the office and that the account was true and correct; that it showed the charges and credits; that his records were the records in the sales journal. When asked what the exhibit was, witness states it was the original copy of invoices, which respondent offered in evidence as exhibits "V and "F." Appellant objected to their introduction because they were copy and not a book of original entry. The court overruled the objection and allowed the exhibits to be offered. Appellant objected because it was not an original and was not identified and no foundation laid for its identity.

On cross examination witness Knoerr testified that he relied upon J. E. Cole to pay his account.

Witness P. U. Benson testified that he sold several trucks and tires to J. E. Cole in 1929 and other dates; that he could not say exactly what they were, but he noticed no difference in the management of the Cole Motor service after the incorporation, from what it was before; that he imagined that the property of J. E. Cole was transferred to the corporation.

The testimony of Andrew Kliethermes was that he started in business in 1920; that he then had a customer by the name of Cole Motor Service, who started buying in 1936. He identified the note in question, which was exhibit "G". He testified as to the assets that went into the corporation; that Mr. Cole had these trucks and would either have to sell them or out them in the corporation. He further testified that respondent had received checks from the new corporation on account, and that prior to February 14, 1931, he did not charge anything to an client, the Cole Motor Service, Incorporated, That as soon as the appellant was incorporated he sent statements to the corporation for both the old account and the new account.

The evidence of appellant was to the effect that he advised Mr. Kliethermes shortly after the date he formed the corporation, that in the incorporation he out in some cash, some equipment and some good will; that all of his property aid not go into the corporation; that he owned 450 shares out of the 500.

Appellant further offered checks in evidence to show payment of $250 on the account, which checks were issued by appellant, and which claims were not credited on the account. It was contended these checks were not to apply on the old account of J. C. Cole, but were to be applied to the account contracted since the incorporation of appellant.

Respondent filed a motion to dismiss the appeal in this case, on the ground that appellant had not complied with rule 18 of this court., and section 1060, R.S.Mo. 1929 (MoSt.Ann. § 1060, p. 1341). It is our opinion that appellant was given the court the benefit of a concise statement of the entire case, and that the motion to dismiss the appeal should be and as overruled.

It is contended by appellant that "The court erred in denying appellant's request for separate trial on equity counts, being count number two of the petition, which was clearly based in equity and which does not support the judgment rendered."

Count number two of the petition, we think, is clearly an equitable count, asking for equitable relief. It is well settled law, in this state, that where a count at law and a count in equity are included in the Same petition, they require separate trials and separate judgments. Jones v Moore, 42 Mo. 413, 420; Henderson v Dickey, 50 Mo. 161. This conclusion is indeed inevitable if such joinder is allowed. Crowe, Adm'r, v Peters, 63 Mo. 429, 1. c. 435; Martin v Turnbaugh 153 No. 172, 54 S.W. 515.

It is further contended by appellant that "The second count is based upon a note. The note was not filed in accordance with the statutes. There is no prayer for a general judgment rendered in the case and no judgment was asked for nor was respondent, under the pleadings, untitled to a general judgment against the appellant."

A suit upon a promissory note does not allege a cause of action, unless the note is filed with the petition, which was not done in the instant case. (section 815 R.S.Mo.1929 (Mo.St.Ann. § 815, p. 1066); Gewe v. Hanszen, 85 Mo.App. 136.

Count 3 of the petition simply states that the Cole Motor Service owes the plaintiff a balance on open account. There is no allegation of the sale and delivery of the items mentioned in the account.

In order to prove an account, it must be proven that it is an original book of entry, that the entries are made contemporaneously with the transaction they must be shown to be made and kept correctly.

It is contented by appellant that the court erred in admitting plaintiff's ' Exhibit "E" and Exhibit "F." Exhibit "E" was a ledger sheet and Exhibit "F" contributed copies of the invoices which were set forth in Exhibits "F" and "C", attached to plaintiff's petition. They were not shown to be original entries by respondent's testimony, but were shown to be notice thereof. There is no proof that they were made contemporaneously with the transaction, nor is there any proof whatever in the record that the books were correctly kept. Bedwell v. Capital Mutual Ass'n (Mo. App.) 66 S.W.2d 155, 1oc. cit. 156.

It is further contended by appellant that the trial court committed reversible error by admitting in evidence Exhibits "E" and "F", because "They were not made contemporaneously with the transaction they purported to represent and were, therefore, not res gestae, and it was affirmatively shown, moreover, that the sales tickets and not these records were the originals." And, that "They were not shown to be made or kept correctly and there was, therefore, no sufficient satisfaction of the requirements of admissibility."

A record, to be admissible, must be made contemporaneously with the transaction it purports to represent, It cannot be a more past narrative. It must be sufficiently close in point of time to render it a part of the res gestae so that it carries a circumstantial guaranty of...