Nedvidek v. Meyer

• Decision Date: 31 October 1870
• Citation: 46 Mo. 600
• Parties: J. W. NEDVIDEK, Defendant in Error, v. J. H. G. MEYER, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 600

J. W. NEDVIDEK, Defendant in Error,

v.J. H. G. MEYER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Second District Court.

Conger, Reynolds & Perryman, for defendant in error.

Wingo & Relfe, for plaintiff in error.

CURRIER, Judge, delivered the opinion of the court.

The judgment herein is sought to be arrested because of the supposed mingling of different causes of action in the same count, and also because causes of action supposed to be incongruous are joined in the same petition. The suit is upon an account containing items of charge for rent, board, services, and goods sold, together showing an aggregate of indebtedness amounting to $2,098.57. Whether the rent was recoverable in an action upon the account is a question which can not be determined upon a motion in arrest. That is a matter to be settled by the evidence. If the parties had mutual dealings, and the rent became a subject of account between them, by mutual understanding and arrangement, it thereby became a proper matter of book charge, and recoverable in an action upon the account. (Scott v. Lance, 21 Verm. 507.) The account contained an item for goods sold amounting to $1,077.67. At the trial, which was before a referee, the defendant objected to the plaintiff's evidence in support of this item, on the ground of non-compliance with the statute in regard to itemizing an account sued on. (Wagn. Stat. 1020, § 38.) The evidence was received notwithstanding the objection, and the referee found from it, for substance, that the charge was for a sale in gross for a round sum, without any specification of the value or price attached to the several articles sold. Under these circumstances we think the evidence was properly received. The price was upon the mass, and not upon the individual articles. The consideration of the purchase was therefore indivisible, and could not be apportioned or sub-itemized. The sale constituted but a single transaction, and laid the foundation but for a single charge for the value or price of the whole. The sale was in gross, and the charge or item in the account corresponded with the character of the sale. The referee further found that the plaintiff and another party had, prior to the sale, been in partnership in merchandising; that the firm was dissolved about the 1st of June, 1867, and that on the 19th of that month the residuum of goods then on hand was sold to the defendant, including the goods sued for in this action, these latter goods having been put into the joint business by the plaintiff. It is further found that it was arranged in the sale that the purchase money for these particular goods, valued, in gross, at $950, should be paid to the plaintiff, treating them as separate from the joint stock. But the sale to the defendant was evidence by a bill of sale which purported to embrace the whole joint stock, and also purported to recite and set out the consideration paid and to be paid on account of it. The finding of the referee in regard to the $950 was based on oral proofs, which the defendant objected to as tending to vary or contradict the written bill of sale. The bill of sale omitted to state anything about...