Lancieri v. Kansas City Improved Street Sprinkling Co.

CourtMissouri Court of Appeals
Writing for the CourtSmith
Citation69 S.W. 29,95 Mo. App. 319
Decision Date09 June 1902
PartiesLANCIERI v. KANSAS CITY IMPROVED STREET SPRINKLING CO.
69 S.W. 29
95 Mo. A. 319
LANCIERI
v.
KANSAS CITY IMPROVED STREET SPRINKLING CO.
Court of Appeals at Kansas City, Missouri.
June 9, 1902.

REFEREE'S FINDINGS — EVIDENCE — ACCOUNT — MUTUAL DEMANDS — LIMITATIONS.

1. Where a cause is tried before a referee, reviewing courts will not go into the weight of the evidence, but will presume the finding correct.

2. Where plaintiff performed services and paid money for defendant at its request at divers times during a period of three years, and during the same time defendant paid to plaintiff generally divers sums, which were credited generally on the account, and paid a claim against him at his request, there was an open, mutual account, under Rev. St. § 4278, and limitations did not commence to run against any item until the date of the last item.

Appeal from circuit court, Jackson county; Edward P. Gates, Judge.

Action by Joseph Lancieri against the Kansas City Improved Street Sprinkling Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. Wright Taylor, for appellant. Thomas J. Seehorn, for respondent.

SMITH, P. J.


The plaintiff sued the defendant, a corporation, before a justice of the peace, on the following account, to wit:

For labor performed by plaintiff for
                 and at the request of defendant, and
                 for which it agreed to pay, from November
                 11, 1894, to November 30,
                 1895 .................................... $114 38
                For money expended by plaintiff at
                 the request and for the use of defendant,
                 and which it agreed to pay 48 00
                 _______
                 Total ................................. $162 38
                On which there is a credit of $70, as
                 follows: October 12, 1896, $15; June
                 2, 1897, $15; September 2, 1897,
                 $15; November 9, 1897, $15; December
                 2, $10 .................................. 70 00
                 _______
                 Balance ............................... $ 92 38
                

The defendant filed a paper entitled an "answer," wherein it is denied that the plaintiff paid the items mentioned in his account at its request. It is therein further alleged that "at various dates and times in the year 1895, and thereafter, it paid to the plaintiff, and for his account, at his request, the sum of one hundred and twenty-five dollars, which is ten dollars and sixty-two cents more than

69 S.W. 30

was due to the plaintiff. Defendant states that it overpaid the plaintiff the said sum of ten dollars and sixty-two cents by the mutual error and misunderstanding of both this plaintiff and defendant." And it was still further pleaded that the said items are barred by the statute of limitations, more than five years having elapsed since plaintiff claims to have paid them.

The cause was removed to the circuit court by appeal, when, by consent of parties, it went to a referee, who, after a hearing, made a report containing the following comprehensive, clear, and explicit finding:

"The issues thus presented in this case are: Did plaintiff perform labor for defendant as alleged? If he did, what was such labor...

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4 practice notes
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...Wire Co., 94 Mo. App. 267, 68 S.W. 594; State ex rel. v. Elliott, 82 Mo. App. 476; Laucieri v. Kansas City Sprinkling Co., 95 Mo. App. 323, 69 S.W. 29; Kline Cloak & Suit Co. v. Morris, 293 Mo. 478, 240 S.W. 96; St. Louis v. Parker-Washington Co., 271 Mo. 242, 196 S.W. 767; Johnston v. ......
  • Walker County Lumber Co. v. Edmonds, (No. 1595.)
    • United States
    • Court of Appeals of Texas
    • October 6, 1927
    ...Page 612 And that is one of appellants' propositions here. See, also, Lancieri v. Kansas City Improved Street Sprinkling Co., 95 Mo. App. 319, 69 S. W. 29; Mueller v. Heidemeyer, 49 Tex. Civ. App. 259, 109 S. W. 447; Thompson v. Alford, 20 Tex. 491; Campbell v. Wilson, 6 Tex. 379; Rabb v. R......
  • Laclede Power Co. v. Nash-Smith Tea & Coffee Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 10, 1902
    ...— for one month? A. Yes, sir. * * * Q. For the purpose of stating to the jury exactly what the amount of damages is that we allege, will 69 S.W. 29 you compute, Mr. Beck, what would be the profits that your company would have made upon this contract from the 15th of February, 1899, to the 1......
  • Somerville v. Missouri Glass Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 6, 1910
    ...saved from the operation of the statute." Chadwick v. Chadwick, 115 Mo. 581, 22 S. W. 479; Lancieri v. Kansas City Sprinkling Co., 95 Mo. App. 319, 69 S. W. We are of the opinion that the court erred in holding the demands barred by the statute of limitations, and we will reverse the j......
4 cases
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...Wire Co., 94 Mo. App. 267, 68 S.W. 594; State ex rel. v. Elliott, 82 Mo. App. 476; Laucieri v. Kansas City Sprinkling Co., 95 Mo. App. 323, 69 S.W. 29; Kline Cloak & Suit Co. v. Morris, 293 Mo. 478, 240 S.W. 96; St. Louis v. Parker-Washington Co., 271 Mo. 242, 196 S.W. 767; Johnston v. ......
  • Walker County Lumber Co. v. Edmonds, (No. 1595.)
    • United States
    • Court of Appeals of Texas
    • October 6, 1927
    ...Page 612 And that is one of appellants' propositions here. See, also, Lancieri v. Kansas City Improved Street Sprinkling Co., 95 Mo. App. 319, 69 S. W. 29; Mueller v. Heidemeyer, 49 Tex. Civ. App. 259, 109 S. W. 447; Thompson v. Alford, 20 Tex. 491; Campbell v. Wilson, 6 Tex. 379; Rabb v. R......
  • Laclede Power Co. v. Nash-Smith Tea & Coffee Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 10, 1902
    ...— for one month? A. Yes, sir. * * * Q. For the purpose of stating to the jury exactly what the amount of damages is that we allege, will 69 S.W. 29 you compute, Mr. Beck, what would be the profits that your company would have made upon this contract from the 15th of February, 1899, to the 1......
  • Somerville v. Missouri Glass Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 6, 1910
    ...saved from the operation of the statute." Chadwick v. Chadwick, 115 Mo. 581, 22 S. W. 479; Lancieri v. Kansas City Sprinkling Co., 95 Mo. App. 319, 69 S. W. We are of the opinion that the court erred in holding the demands barred by the statute of limitations, and we will reverse the j......

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