Mine & Smelter Supply Co. v. Parke & Lacy Co.

• Decision Date: 25 February 1901
• Docket Number: 1,436.
• Citation: 107 F. 881
• Parties: MINE & SMELTER SUPPLY CO. v. PARKE & LACY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

107 F. 881

MINE & SMELTER SUPPLY CO. v. PARKE & LACY CO.

No. 1,436.

United States Court of Appeals, Eighth Circuit.

February 25, 1901

Sol. Shwayder and Charles J. Hughes, Jr., for plaintiff in error.

Henry Charles Charpiot, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District judge.

CALDWELL Circuit Judge.

The Parke & Lacy Company, a corporation, organized under the laws of the state of California, brought this action against the Mine & Smelter Supply Company, a corporation organized under the laws of the state of Colorado, upon three causes of action declared on in separate counts in the complaint. The first count was based upon an account stated for $277.97, the second upon an account for $1,616.50 for goods sold and delivered, and the third upon an account for $1,750 for money had and received. A general demurrer to the complaint was overruled. The answer was a general denial, and a counterclaim for $8,000 damages growing out of alleged defects in certain furnaces for roasting and treating mineral-bearing ores sold by the plaintiff to the defendant. In the progress of the trial the court made a ruling which the defendant construed as precluding it from recovering on its counterclaim in this action, whereupon, by leave of the court, it withdrew its counterclaim. The subject-matter of the counterclaim probably led to this litigation, and, when that was withdrawn, there seems to have been little or nothing left to litigate over. The plaintiff recovered judgment upon its several causes of action, less an admitted credit of $50 allowed at the trial on one of the accounts.

It is assigned for error that the count upon the account stated does not, in terms, allege a promise to pay. The count alleges that an account was stated between the parties, upon which statement and accounting a balance was found due from the defendant to the plaintiff of $277.97, and that the defendant has not paid the balance thus found due, or any part of it. Whatever may have been the rule under the common-law system of pleading, this is a good count under the code system, which rejects all forms technicalities, and fictions in pleadings, and only requires a statement of the cause of action in ordinary and common language. Section 49, Code Colo. When, from the facts stated the law implies a promise to pay, the promise the law implies from the facts stated need not be alleged; and, even if code pleading required such a formal averment, the objection would avail nothing after verdict and judgment, but the complaint would be treated as amended in that particular. Lincoln v.Iron Co., 103 U.S. 412, 26 L.Ed. 518; Keener v Baker, 35 C.C.A. 350, 93 F. 377; Haley v. Kilpatrick (C.C.A.) 104 F. 647. Manifestly, the count stated facts which imposed on the defendant the obligation to pay, which obligation it is expressly averred the defendant had not discharged. A formal allegation that the defendant had promised to discharge its obligation would have added nothing to the liability the law implied from the facts stated, and, moreover, would have been a mere fiction. If the count had alleged an express promise to pay the stated account, the plaintiff would not have been required to prove it, and it is unnecessary to allege a fact which does not have to be proved. The plaintiff had a right to rely upon the promise to pay which the law implied from the facts stated, and plain implications of law from facts stated do not have to be pleaded. Bank v. Rogers (Super. Buff.) 1 N.Y.Supp. 757; Heinrich v. Englund, 34 Minn. 395, 396, 26 N.W. 122; Bouslog v. Garrett, 39 Ind. 338. The other two causes of action were admitted on the trial. To the charge of the court to this effect, and which also instructed the jury to allow interest on the first and second causes of action and disallow it on the third, the defendant excepted only to such part thereof as related to the allowance of interest, and, upon the facts disclosed by the record, an objection that the second and third causes of action were not admitted would have contradicted the record and been unavailing. The court told the jury that the plaintiff was entitled to interest on the first cause of action from the date the account was stated, and on the second cause of action from the date the account became due and payable. The charge conformed to the Colorado statute and decisions. Section 2252, Mills' Ann.St.; Bergundthal v. Bailey, 15 Colo. 257, 259, 25 P. 86; Mining Co. v. Old, 38 C.C.A. 89, 97 F. 150.

It is further assigned for error that the court refused to permit Mr. Harron, a witness called by the plaintiff, to answer certain questions propounded to him by the defendant on his cross-examination. This witness was the vice president of the plaintiff company, and was called to prove that the letters and statements constituting the account stated were in the handwriting of the defendant, and that the letters and statements offered in evidence were the originals. He was not examined by the plaintiff touching the item or items of the account going to make up the account stated, nor at all in reference to the dealings between the plaintiff and the defendant and the state of accounts between them. His testimony in chief was confined strictly to the mere identification of the letters and statements, so that they might be introduced in evidence. Upon cross-examination the defendant sought to examine the witness generally in reference to the business transactions between the parties and the state of the accounts between them, and as to all of the causes of action set out in the complaint. To this cross-examination the plaintiff objected upon the ground that it was not proper cross-examination, and was irrelevant and immaterial, and the court very properly sustained the objection. 1 Greenl.Ev. 445. 'To permit the defendant, under guise of cross-examination, to give evidence in chief, is not only disorderly, but unfair to the plaintiff. ' Hopkinson v. Leeds, 78 Pa. 396, approved and followed in Fulton v. Bank, 92 Pa. 112, 115. The defendant's counsel did not acquiesce in the court's ruling, but continued to propound questions to the witness which were not proper cross-examination. The following excerpt from the record discloses the character of the attempted cross-examination of the witness:

'Q. What disposition has been made of the claim of the Mine & Smelter Supply Company on account of these back charges? A. They were paid as made by the

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