Leimer v. Pacific R.R.

• Decision Date: 31 October 1857
• Citation: 26 Mo. 26
• Parties: LEIMER, Appellant, v. PACIFIC RAILROAD, Respondent.
• Court: Missouri Supreme Court

26 Mo. 26

LEIMER, Appellant,

v.PACIFIC RAILROAD, Respondent.

Supreme Court of Missouri.

October Term, 1857.

1. Where a demurrer to a petition is improperly sustained in part and overruled in part, and the court improperly strikes out a portion of the petition, and the plaintiff takes a nonsuit, he will be entitled to have the nonsuit set aside.

Appeal from Gasconade Circuit Court.

The following is the petition in this cause: “The plaintiff states that defendant owes him $1012.45 for provision, boarding and lodging furnished for employees on said road; also for others, at the special instance and request of defendant; also for brandies, wines, hay, straw, ice, clothing, bedding, attention to persons wounded on said road; also for work and labor done and performed for defendant; also for money paid out and expended for defendant, all at the special instance and request of defendant; the particulars of all which, and also the credits thereon will appear by the several accounts hereto annexed and made part of this petition. Plaintiff asks judgment for $1012.45, being the amount due him.”

With this petition, three several accounts--marked A., B. and C.--were filed. In these accounts many of the items were charged in the aggregate, thus: “Nov. 1, 1855--Supper for 360 persons at 50 cts., $180. Nov. 2, 1855--Breakfasts for 320 persons, $160. Nov. 2, 1855--Dinners for 265 persons, $132.50. Nov. 2, 1855--Supper for 17 persons, $8.50,” etc. The defendant demurred to the petition. The court sustained the demurrer as to the accounts marked A. and B., and ordered them to be stricken out, with the exception of certain specified items. The court overruled the demurrer as to the third account filed. The plaintiff thereupon took a nonsuit, and afterwards moved to set the nonsuit aside. The court overruled the motion.

Stevenson, for appellant.

I. In setting out the items of an account a party is only required to state the same so that the opposite party may know with certainty for what specific thing a recovery is sought. It was an intelligible statement of the items to charge defendant with a certain number of meals furnished as a landlord at the request of plaintiff, and it was immaterial by whom they were eaten, and in this case impossible to be stated, because they were strangers to plaintiff. The items stricken out were all intelligibly stated, and apprised defendant fully of the nature of the same. The grounds of the demurrer were not well taken as against the account of plaintiff.

S. T. & A. D. Glover, for respondent.

I. The plaintiff having abandoned his petition can not assign error on that account. Having taken a nonsuit he has abandoned his demurrer, and he has now no remedy on his assignment of error.

SCOTT, Judge, delivered the opinion of the...