Moore v. Schank

• Decision Date: 11 April 1947
• Docket Number: 32180.
• Citation: Moore v. Schank, 148 Neb. 228, 27 N.W.2d 165 (Neb. 1947)
• Parties: MOORE v. SCHANK.
• Court: Nebraska Supreme Court

27 N.W.2d 165

148 Neb. 228

MOORE v. SCHANK.

No. 32180.

Supreme Court of Nebraska

April 11, 1947

Syllabus by the Court

1.In a law action findings of fact made by the court have the same force and effect as the verdict of a jury.If there is competent evidence to support them, such findings will not be disturbed on appeal.

2.In an action founded upon an account, it shall be sufficient for the party to give a copy of the account with all credits thereon, and to state that there is due to him on such account from the adverse party a specified sum, which he claims with interest.

3.The court will, when possible, sustain the theory intended by the pleader.

4.No judgment shall be reversed or affected by reason of any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.

5.In the absence of a contract upon the subject unsettled accounts do not draw interest until six months after the date of the last item.

6.Where the excessive amount in a judgment is subject to exact determination, a remittitur may be required as a condition of affirmance for the correct amount.

Dwight Elliott and Frank Glebe, both of Scottsbluff, for appellant.

Morrow Lovell & Bulger, of Scottsbluff, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGERCHAPPELL, and WENKE, JJ.

SIMMONS Chief Justice.

This is an action to recover the balance due on an open account for goods sold and delivered.Plaintiff recovered a judgment.Defendant appeals.We require a remittitur and, subject thereto, affirm.

After several pleadings had been filed in this action, plaintiff secured permission to file and filed an amended petition.This matter went to trial upon the issues presented by plaintiff's amended petition; defendant's answer, counter-claim, and setoff; and plaintiff's reply and answer to counter-claim.

Plaintiff's petition sets out four causes of action.In the first cause of action plaintiff alleges that between August 1942 and April 1945, he sold and delivered to defendant, at his request, goods, wares, and merchandise, and advanced cash in the amount of $31,912.77; that the defendant by payments and the return of goods was entitled to a credit of $28,773.35 leaving a balance of $3,139.42; that numerous statements had been rendered showing said balance due, plus interest in the amount of $198, making a total of $3,337.42; and that defendant retained the accounts, examined the items as shown by plaintiff's ledger, agreed that the amount as shown by the ledger was correct, and promised to pay the same.Plaintiff further alleged that subsequent to the commencement of the action, defendant had returned material of the value of $1,784, leaving a balance due of $1,553.42.Plaintiff attached an itemized statement of the account showing dates, items, debits, and credits (excepting the last credit of $1,784).

The errors assigned here do not require that we set out in detail the remainder of the pleadings.

Plaintiff's second cause of action alleged an account stated in the sum of $1,408.92.Plaintiff's third cause of action alleged a balance due of $1,637.50 for merchandise sold and delivered after the account stated.

Plaintiff's fourth cause of action was for goods of plaintiff in the amount of $93. converted to the use of the defendant and charged to defendant by plaintiff.Plaintiff prayed for judgment on his second, third, and fourth causes of action, or in the event it was found there was no account stated between the parties, that he have judgment on his first cause of action.

Defendant filed a motion to require plaintiff to elect upon which cause he expected to maintain his action, or to strike the second, third, and fourth causes of action.Thereafter the parties filed and the court approved a stipulation waiving trial by jury and agreeing to trial to the court.Two days later the motion to elect was submitted and overruled.

Defendant then filed his answer and counter-claim, denying generally, admitting the purchase of goods, wares, and merchandise, but denying that the total sales were correct, admitting payments made, and denying an account stated.Defendant challenged the correctness of the base price of many items and denied receiving articles covered by three separate invoices.He further denied the legality of the charge of $198 for interest, and alleged that plaintiff was indebted to him in the sum of $1,531.39.Defendant sought to recover this amount as a counter-claim, together with two other counter-claims for labor and material furnished the plaintiff.For reply, plaintiff made admissions and denials not material to the decision of the errors assigned here.

The matter was tried.The trial court found in favor of the plaintiff and against the defendant on the plaintiff's first cause of action, and determined that there was due the plaintiff the sum of $1,553.42 (which included $198 for the interest item).The court further found, '* * * it is unnecessary to determine whether or not, at said time of at any other time, an account was stated between plaintiff and defendant and it is further unnecessary to make any finding on the second, third and fourth causes of action, * * *.'The court found for defendant on his counter-claim in the sum of $126.65.Judgment was rendered for the plaintiff against the defendant in the sum of $1,426.77.Motion for a new trial was made and overruled.

Defendant appealing presents here the contentions that the court erred in finding that the evidence was sufficient to obtain a judgment on plaintiff's first cause of action; that the court erred in considering plaintiff's first cause of action as both an action on an open account and an account stated and rendering judgment 'based upon both theories'; in refusing to make plaintiff...