Marshall v. Western Envelope Mfg. Co.

• Decision Date: 06 June 1927
• Docket Number: No. 15890.,15890.
• Parties: MARSHALL v. WESTERN ENVELOPE MFG. CO.
• Court: Missouri Court of Appeals

295 S.W. 491

MARSHALL v. WESTERN ENVELOPE MFG. CO.

No. 15890.

Kansan City Court of Appeals, Missouri.

June 6, 1927.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially reported."

Account filed in the justice court by Charles D. Marshall, doing business as the Marshall Manufacturing Company, against the Western Envelope Manufacturing Company, in which defendant interposed a counterclaim. On appeal to the Circuit Court, judgment went for plaintiff on the main action and counterclaim, and defendant appeals. Reversed and remanded.

Grover, Tipton & Graves and Virgil Yates, all of Kansas City, for appellant.

L. W. Littick, of Kansas City, for respondent.

WILLIAMS, C.

The respondent filed in the justice court an account against the appellant for $164.20 for work and material. The appellant filed a counterclaim, in which he alleged damages in the sum of $500 by reason of loss of business caused by the unreasonable delay of the work on the machine by plaintiff.

The evidence shows that on or about March 1, 1923, the proprietor of the plaintiff company was called to look over some machines owned by the defendant. One Mr. Aull seems to have beep in charge of the machine, and directions were given by Mr. Aull as to what work should be done. The payment was to be determined by the time consumed and the material used. The work was done in the plaintiff company's shop. Delay in getting the material caused a loss of time; 104¾ hours, at $1.50 an hour, was the labor bill, and $7.05 was expended for material for the machine. Plaintiff's witness further testified that, after the bill had been presented, Mr. Aull went over "every item of it, labor and material," and testified that Mr. Aull said there was nothing wrong with it, and he would O. K. it.

The mechanics who did the work were present, and corroborated Mr. Marshall, plaintiff's witness. At the close of plaintiff's evidence the defendant requested a demurrer, which was refused. The defendant then introduced evidence tending to show that the bill was much too large and evidence tending to show what the reasonable price would have been.

The jury found for the plaintiff in the full amount of $164.20, and found in favor of the plaintiff upon defendant's counterclaim.

The appellant complains that the demurrer at the close of plaintiff's evidence was not sustained. This is answered by the fact that plaintiff did not stand upon its demurrer, but introduced evidence in its own behalf.

Judge Ellison, in the case of Leo Felix v. W. S. Bevington, 52 Mo. App. 403 loc. cit. 407, said:

"* * * That when defendant demurred to the evidence at the close of the plaintiff's case, and thereafter, on its being refused, introduced testimony in his own behalf, he took the risk of aiding plaintiff's case by such testimony, and practically waived the demurrer, and he cannot afterwards be heard to complain of the refusal."

It is contended that the statement filed is fatally defective. The statement is as follows:

"Marshall Manufacturing Co. Chas. D. Marshall, Light Manufacturing and Machine Work, 912-14 Grand Ave., Kansas City, U. S. A. Sept. 29, 1923. Western Envelope Co., 716 Baltimore Ave. Terms: Net cash. Mch. 1, 1923. Invoice 986 164.20."

A very similar statement was before this court in the case of Jones v. St. Joseph Gazette Co., 285 S. W. 771, in which case the court stated:

"We think, however, that defendant's contention that the statement is insufficient is well taken. No date is mentioned, and, in addition to there being no items set out, there is no intimation as to what was the subject of the account. Butts v. Phelps, 79 Mo. 302; Brashears v. Strock, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 308; Rosenburg v. Boyd, 14 Mo. App. 429; Weese v. Brown, 28 Mo. App. 521; Nutter v. ' Houston, 32 Mo. App. 451; In re Buck, 204 Mo. App. 1, 220 S. W. 716. It does not consist of a statement of the account or facts constituting the cause of action upon which the suit is founded as required by section 2735, R. 8. 1919. It does not...