Niehaus v. Gillanders

• Decision Date: 04 April 1916
• Docket Number: No. 14432.,14432.
• Citation: 184 S.W. 949
• Parties: NIEHAUS et al. v. GILLANDERS.
• Court: Missouri Court of Appeals

184 S.W. 949

NIEHAUS et al. v. GILLANDERS.

No. 14432.

St. Louis Court of Appeals. Missouri.

April 4, 1916.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by August L. Niehaus and others against Kate Gillanders. From a judgment for defendant, plaintiffs appeal. Judgment reversed, and cause remanded.

Henderson & Henderson, of St. Louis, for appellants. S. C. Taylor, of St. Louis for respondent.

REYNOLDS, P. J.

Plaintiffs here, doing business under the trade name of Star Heating & Foundry Company, began their action before a justice of the peace, filing a statement as follows:

"Demand on account stated between plaintiff and defendant in the sum of $446, on account of work and labor done for defendant in the installation and repairing of heating systems in buildings 3629 and 3631 Lindell Boulevard, St. Louis, Mo., as per statement filed herewith and made part hereof."

The account referred to is attached, the total of debits amounting to $1,206.50, credits of $760.50 reducing it to $446. To this defendant filed an answer in which she specifically "denies that there ever was an account stated between plaintiffs and defendant," and denies each and every allegation in the account filed. By way of counterclaim defendant avers that under a contract with the plaintiffs for installing a heating plant in the building known as 3631 Lindell Boulevard, plaintiffs furnished material and labor in an attempt to carry it out; that the material furnished was defective and the labor that was done, was done in such an unworkmanlike and defective manner, that defendant had been damaged in the sum of $3,000. In the second count of the counterclaim it is averred that in the fall of 1910, defendant had entered into a contract with plaintiffs to repair a boiler which it had installed in the building known as 3629 Lindell Boulevard and to repair the heating plant in the building, but that plaintiffs, in an attempt to carry out the contract, had furnished defective material and did the work in an unworkmanlike manner, to the damage of defendant in the sum of $200, for which she demanded judgment.

We are not advised as to the result of the case before the justice. The case was appealed to the circuit court and on the trial there, resulted in a verdict against plaintiffs on their cause of action and in favor of defendant on her first counterclaim in the sum of $300.00, and on her second counterclaim in the sum of $200.00, and judgment following on the verdict, after filing a motion for new trial, which was overruled, and saving exception to the action of the court, plaintiffs have duly appealed to our court.

It is sufficient to say of the evidence that on behalf of plaintiffs it tended to prove that under a written contract with defendant, plaintiffs undertook to and did install a first-class low pressure steam heating apparatus at 3631 Lindell Boulevard, guaranteeing that the apparatus would be complete and that it would maintain heat in every radiator, and be capable of warming all rooms mentioned in a schedule to a given temperature when the outside temperature was zero and when directions were followed for managing the plant. It is further contracted that if the apparatus was accepted by defendant, if any part constructed by plaintiffs should fail to satisfy the guarantee by reason of any defect in it, plaintiffs would remedy the defect at their own cost within a reasonable time after receiving written notice of the defect. The price for this was to be $564, payable as the work progressed to the value of the material and labor furnished, less 15 per cent. retained until final settlement on completion of the work. In No. 3629 Lindell Boulevard the plaintiffs were to install a boiler at the price of $325. Plaintiffs' evidence tended to prove due performance of their contract.

There was evidence for defendant tending to show that the radiators and boiler were so defective that heat could not be kept up in the houses, which defendant was occupying as boarding or rooming houses, and that in consequence thereof the tenants and boarders left, and defendant testified that she had in consequence lost her investment in one house, to the amount of $5000 and in the other to the amount of $3000.

For plaintiffs there was also evidence that the several plants had done their work; that defendant expressed her satisfaction with them; that she knew the radiators and boiler were second-hand and therefore priced at a low figure and that when she called attention to leaks and defects plaintiffs had promptly repaired them. The evidence for plaintiffs also tended to prove that they had sent defendant statements of the account, which consisted of the contract prices for the plants and also for merchandise outside of them and that defendant had never disputed the account but had made payments on it from time to time until there remained $446 due; that the account showing this had been presented to her from time to time and she made no objection to it but said she was unable to pay it.

Defendant, testifying on her own behalf, denied that she had ever received any account showing a balance of $446 due by her and denied ever promising to pay it.

As we are compelled to reverse the judgment for errors in the instructions, it is unnecessary to set out the evidence more at length.

It is insisted by learned counsel for appellants that in a case originating before a justice of the peace, the defendant's appearance operated as though the general denial was interposed as at common law, and that the validity of portions of the original account may not be inquired into on a general denial, and that in the absence of a showing of fraud or mistake, a counterclaim cannot be pleaded in an action on an account stated where the matter out of which the counter-claim grows is the same subject-matter as makes up the account. Koegel v. Givens, 79 Mo. 77; Pickel v. St. L. Chamber of Commerce Ass'n, 10 Mo. App. 191; s. c., 80 Mo. 65; Columbia Brewing Co. v. Berney, 90 Mo. App. 96, and Barr v. Lake, 147 Mo. App. 252, 126 S. W. 755, are the cases cited in support of these propositions.

These points are argued with great earnestness by counsel for appellants. But there is a great and marked distinction between the cases cited and the one at bar. In the answer interposed before the justice, defendant distinctly denied that there was any account stated. In the cases cited there was either a mere general denial or an attempt to attack the account stated, it being admitted to be such. Here there was a specific denial of an account stated. In Barr v. Lake, supra, a case originating before a justice of the peace, and in which it appears that no formal pleadings had been filed by the defendant, our court held that defendant might show that...