McCormack v. Sawyer

• Decision Date: 31 March 1891
• Citation: McCormack v. Sawyer, 104 Mo. 36, 15 S.W. 998 (Mo. 1891)
• Parties: McCORMACK v. SAWYER.
• Court: Missouri Supreme Court

15 S.W. 998

104 Mo. 36

McCORMACK v. SAWYER.

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

ACCOUNT STATED — EVIDENCE.

Proof that plaintiff had mailed to defendant a statement of the account between them, and that defendant had admitted its receipt, and promised to pay the balance shown therein against him, is sufficient evidence of an account stated.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

This case was heard on the following petition and answer: "William G. McCormack, plaintiff, against Charles H. Sawyer, defendant. Plaintiff states that on, to-wit, the 12th day of December, 1883, defendant was indebted to the firm of Smith, McCormack & Co. in the sum of fourteen thousand nine hundred and forty-one and 60-100 dollars, for money then found to be due from said defendant to said Smith, McCormack & Co. upon an account stated between them, which said sum the defendant then and there promised to pay the said Smith, McCormack & Co.; that on, to-wit, the 1st day of January, 1884, defendant paid on account of said indebtedness the sum of five thousand dollars ($5,000) by note of one S. F. Cathings; that the balance of nine thousand nine hundred and forty-one and 60-100 dollars, and interest from said 12th day of December, 1883, is still due and wholly unpaid. And plaintiff further states that on, to-wit, the 28th day of March, 1885, said Smith, McCormack & Co. assigned said demand to John R. Christian; that on, to-wit, the 26th day of May, 1888, said John R. Christian assigned said demand to William G. McCormack plaintiff. Wherefore plaintiff asks judgment against defendant for the sum of ninety-nine hundred and forty-one and 60-100 dollars, together with interest thereon from the 12th day of December, 1883, at the rate of six per centum per annum, and his costs. By CHRISTIAN & WIND, His Attorneys." To which petition the defendant filed the following answer: "(1) Defendant comes by attorney, and by leave of court files this, his amended answer to the amended petition of the plaintiff herein, and for his first defense to said petition denies each and all allegations therein contained. Defendant for second defense to plaintiff's petition says that during the year 1883 the firm of Smith, McCormack & Co., of which plaintiff was a member, was engaged in the business of making contracts for the future purchase or sale of corn, oats, wheat, and other produce in the city of Chicago and state of Illinois; that this defendant was engaged at said time in making contracts for the purchase and sale upon future delivery of corn, oats, wheat, and other produce for his customers in the city of St. Louis and state of Missouri, and was doing business in the firm name of Charles H. Sawyer; that Smith, McCormack & Co. were defendant's correspondents at Chicago, and upon his orders had executed for him, and had upon their books, a large number of said contracts for future delivery during the fall of 1883; that in the course of the business carried on by said Smith, McCormack & Co. and defendant it is usual to require customers to `margin' contracts for future delivery, — that is, to deposit a sum of money with the broker or agent having the contract, which will indemnify him against loss according to the fluctuation and changes in the market price for the thing contracted for; that Smith, McCormack & Co. were correspondents for the defendant, entered into agreements and contracts whereby they agreed to carry the deals or contracts made for certain of defendant's customers upon the condition that said deals or contracts should be kept by said customers margined upon the call of defendant or upon the call of Smith, McCormack & Co.; that said agreement was in writing, and was in all respects carried out by defendant and by his customers therein referred to; that said Smith, McCormack & Co. further agreed and contracted with the defendant with reference to the deals of one Ogden Fontain, whose account was placed by said Smith, McCormack & Co., and charged against this defendant; that said deal should be carried to its maturity without any additional margin from defendant or from Ogden Fontain; that on the 3d of December, 1883, in utter disregard and violation of which said contracts and agreements, said Smith, McCormack & Co., without notifying this defendant, closed out all the contracts and deals on their books made or charged to this defendant; that by reason of this breach of their contract and good faith this defendant was injured and damaged in the sum of $10,000, being the amount which would have been due this defendant upon the faithful execution and performance of the said Smith, McCormack & Co. of the two aforesaid agreements and contracts; wherefore defendant prays judgment against plaintiff as a member of the firm of Smith, McCormack & Co. for the sum of $10,000, interest,...