Murphy v. Lungstrass D. & C. Co.
| Decision Date | 01 March 1915 |
| Parties | MARGARET MURPHY, Respondent, v. LUNGSTRASS D. & C. COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED.
Judgment affirmed.
Edward Myers and H. H. McClure for appellant.
(1) The statement of plaintiff's cause of action does not state sufficient facts to uphold the judgment. Lawson on Bailments 40; 136 Mo.App. 38. (2) The court erred in refusing to instruct the jury to find the issues in favor of this defendant. 10 Mo.App. 191-194; 12 Mo. 165; 82 Mo.App 635-640; 154 Mo.App. 538; 145 Mo. 651-658-659; 17 Mo. 36; 107 Mich. 41; 41 N.Y. 113.
Kyle & Coon for respondent.
(1) The statement filed by plaintiff is sufficient. It advises defendant of the nature of plaintiff's claim and a judgment upon it will bar another action for the same demand and that is all the law requires. Witting v Railroad, 101 Mo. 631; Butts v. Phelps, 79 Mo. 302. (2) It cannot be said that there was a fair and well understood compromise and settlement of plaintiff's claim and without that there is no valid accord and satisfaction. Whether there was an accord and satisfaction was a question of fact and the burden of establishing the same rested on the defendant. Therefore, the finding of the jury that accord and satisfaction had not been proven is binding upon this court, there being evidence to support it. Barrett v. Kern, 141 Mo.App. 24; Dry Goods Co. v. Goss, 65 Mo.App. 55.
--This action was begun before a justice of the peace where plaintiff had judgment. She again prevailed on appeal to the circuit court.
Plaintiff had a lady's broadcloth suit made for herself by a tailor. Shortly thereafter she got a blood spot upon it and engaged defendant, a clothes cleaning establishment, to remove the spot and clean and press the suit. There was evidence tending to show that, save the spot, the suit was in good condition and appearance when delivered to defendant. But when returned to plaintiff, it was faded and streaked in different shades, and was practically worthless for the purposes for which plaintiff had it made.
When plaintiff saw the condition of her suit she refused to pay the charges of $ 1.50, and defendant, in consequence, refused to deliver. Then, afterwards, plaintiff demanded the suit and defendant's manager said to her: "If you will pay seventy-five cents we will deliver," and she paid the latter sum. Defendant insists that this was a settlement and compromise of the damages now claimed; while plaintiff says that nothing of that kind was intended, or understood and that the seventy-five cents was paid merely to get possession of the suit. This question was presented to the jury and we accept the verdict as determining it. In accord and satisfaction it must have been understood as a complete settlement. [Barrett v. Kern, 141 Mo.App. 5, 25, 121 S.W. 774; Dry Goods Co. v. Goss, 65 Mo.App. 55, 61.]
Nor do we find any error in the instructions. It is true that plaintiff's first instruction directed a verdict for the plaintiff if certain things were believed omitting the qualification of a settlement if one was believed to have been made. But this omission was cured by defendants, where that defense was especially submitted. Under our practice the instructions are taken together, as a whole, and if considered in that way all the issues are submitted, it is sufficient. [Riegel v. Biscuit Co., 169 Mo.App. 513 at 515, 155 S.W. 59; citing Owens v....
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