May, Weil & Co. v. Kloss
| Decision Date | 31 August 1869 |
| Citation | 44 Mo. 300 |
| Court | Missouri Supreme Court |
| Parties | MAY, WEIL & Co., Plaintiffs in Error, v. FRANCIS KLOSS, Defendant in Error. |
Error to Fifth District Court.
S. E. Carter, for plaintiffs in error.
Grubb, and Strong & Chandler, for defendant in error.
The plaintiffs commenced a suit against defendant before a justice of the peace of St. Joseph, and filed the following paper as a statement of his claim:
ST. JOSEPH, Mo., _____ --, 1866.
Mr. FRANCIS KLOSS to REITER, STEIL & Co., Dr.
To merchandise $99 25 By credit 9 25 Balance due
$90 00
October 2, 1866.
Please pay above account to Messrs. D. A. Millington & Co., or order, and accept this for your receipt.
REITER, STEIL & Co.
[Indorsed.] Pay to the order of Messrs. May, Weil & Co.
D. A. MILLINGTON & Co.
Judgment was entered for plaintiff upon the only defense made, “that the plaintiff had no right to sell goods in St. Joseph,” and defendant appealed. In the Circuit Court the case was tried by the judge sitting as a jury, and judgment affirmed. At the trial testimony was offered to show that the defendant, when the statement and orders were presented and read to him, admitted them to be correct, and that he owed the balance stated. After the evidence closed, the judge made the following declaration of law, to which defendant excepted: “Plaintiffs ask the court to declare the law to be that if the court, sitting as a jury, believes that the plaintiffs presented the account sued on to defendant for payment, and, after having showed and read to him the assignments made thereon, defendant admitted it to be correct, the plaintiffs can recover a judgment on the same as on an account stated, without being itemized, and should be so rendered for the plaintiff.”
We have no fault to find with this declaration of law. If the defendant acknowledged his indebtedness for a specific sum, being a balance of an account, the court was at liberty to treat it as an account stated, and did right in giving judgment for such balance. No objection whatever was made before the justice to the character of the paper filed--no complaint of being misled by it--but only an objection to the right of those with whom he made the account to sell him the goods. For the first time, in the Circuit Court, he raises this very slim technical question, when too late to remedy the omission, if one was had.
A similar question was raised in Busch, etc., v. Deipenbrock (20 Mo. 570), one item of an...
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