LeWis v. Baker

• Decision Date: 23 February 1887
• Citation: LeWis v. Baker, 24 Mo.App. 682 (Mo. App. 1887)
• Parties: CHARLES R. LEWIS, Respondent, v. H. E. BAKER, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 682

CHARLES R. LEWIS, Respondent,

v.H. E. BAKER, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1887.

APPEAL from the Phelps County Circuit Court, C. C. BLAND, Judge.

Affirmed.

L. F. PARKER, for the appellant: This was not a case of mere statutory variance, but a failure in proof in a vital particular, or rather the allegation of one state of facts and the introduction of evidence to establish another and very different state. Kiskaddon v. Jones, 63 Mo. 190; Buffington v. Railroad, 64 Mo. 246; Edens v. Railroad, 72 Mo. 212; Waldhier v. Railroad, 71 Mo. 514; Faulkner v. Faulkner, 73 Mo. 327. Although no formal pleadings are required before justices of the peace, and the same completeness requisite to a petition in the circuit court is not required, yet it has always been held that such a statement must advise the opposite party of the nature of the claim, and such is the requirement of the statutes. Rev. Stats., sect. 2851; Butts v. Phelps, 79 Mo. 302.

FORD & PAYNE, for the respondent: The statement filed before the justice was sufficient. Gaty v. Sack, 19 Mo. App. 470; Apitz v. Railroad, 17 Mo. App. 419; City of Kansas v. Johnson, 78 Mo. 661; Allen v. McMonagle, 77 Mo. 478.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff brought suit before a justice, and filed the following statement of his cause of action.

“H. E. BAKER, Atty. to CHARLES R. LEWIS,

To note of L. E. Pillman July 19, '79, at 30 days with interest at ten per cent. per annum from maturity, put into his hands as attorney for collection

Interest till Dec. 8, 1879

$ 3.92

129.92

Dec. 8, by cash

75.00

54.92

Interest tillDec. 23, 1879

.23

55.15

Dec. 23, by cash

25.00

30.15

Interest till March 23, 1880

75

30.90

by cash,

13.00

17.90

By ten per cent. fees on $113 remitted

11.30

6.60

Interest 4 yrs. 11 mos. 19 ds

3.28

9.88

Less ten per cent. fees for collecting $9.88

.98

7.90

When the cause was called for trial in the circuit court, the defendant moved the court to require the plaintiff to make his statement more definite and certain, because he was not advised by the statement, whether he was sued for money had and received, i. e., for money collected, or for neglect in not collecting money.

This motion was overruled. The cause was first tried before a jury and resulted in a judgment in favor of the plaintiff for eight dollars and three cents. This judgment was set aside on the defendant's motion, and the cause re-tried before the court, resulting in a judgment in favor of the plaintiff for five dollars and eighty cents, from which judgment the defendant, after ineffectual motions for new trial and in arrest, appeals to this court.

Upon the trial the evidence tended to show, that the note was placed in the defendant's hands for collection. The defendant, who is an attorney at law, shortly thereafter advised the plaintiff that he had settled the claim, that part of it was settled in collaterals, that he had not got all the money yet, but remitted seventy-five dollars, and would remit the balance in a few days. There was also evidence showing that Pillman, the maker of the note, was solvent at that time and continued solvent. Also evidence tending to show that the defendant had not collected more on the note than $125.50, and had accounted for all of that sum to the plaintiff, but had accounted for no more.

The court refused the defendant's demurrer to the evidence and declared the law, on the plaintiff's motion, that if the defendant settled and delivered the note to Pillman, he being at the time solvent, the plaintiff was entitled to recover the amount remaining unpaid to the plaintiff, less the defendant's collection fee (which was admitted to have been ten per cent. and no more).

The refusal of the court to compel the plaintiff to make his statement more definite, and the court's action on the instructions is assigned for error.

Neither of these errors is well assigned. A statement filed before a justice is sufficient, when it advises the...