Powell v. Pacific R.R.

• Decision Date: 31 October 1877
• Citation: 65 Mo. 658
• Parties: POWELL AT AL. APPELLANTS v. PACIFIC RAILROAD.
• Court: Missouri Supreme Court

65 Mo. 658

POWELL AT AL. APPELLANTS

v.PACIFIC RAILROAD.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.Alexander & Childs for appellants.

Plaintiff's third instruction is correct and should have been given. Greenleaf's Ev. Vol. 2, Sec. 126, 127, 128; Lockwood v. Thorne, 11 N. Y. 170; Leahy v. Dugdale's, Admr. 27 Mo. 437; ib. 34 Mo 99; ib. 41 Mo. 517.

Thos. J. Portis for respondent

The evidence does not support the allegation of an account stated. Cape Girardeau & State Line R. R. Co. v. Kimmel, 58 Mo. 84; Greenleaf's Ev. Vol. 2 § 127; Stebbins v. Miles, 25 Miss. 267; Cartright v. Green, 47 Barb. 9; Rutledge v. Moore, 9 Mo. 533; Bates v. Townsly, 2 Exch. 152; Knowles v. Michel, 13 East 249; Highmore v. Primrose, 5 Maul. & Sel. 65; Cobb v. Arundell, 26 Mo. 553; Andrews v. Allen, 9 Serg. & R. 241.

NORTON, J.

This suit was instituted in the circuit court of Lafayette county, in which the petition of plaintiffs alleges that on the 8th day of July, 1872, defendant was indebted to one Gleason in the sum of $218.16, upon an account stated, being the amount due said Gleason from defendant for boarding hands and laborers employed by said defendant upon its road; said account accruing for boarding such employees from June 1st, 1872, to June 30th, 1872; that said account was, on the 8th day of July, 1872, assigned, for value, by said Gleason to plaintiffs, of all which defendant had due notice on the 12th of July, 1872.

Defendant in his answer, denies all the allegations of the petition, and alleges that on the 10th of July, 1872, one Francisco and one Bellamy recovered two judgments, before a justice of the peace, against said Gleason, upon which executions were issued to the constable of the proper township; that upon these executions said defendant was summoned, on the 11th day of July, 1872, as garnishee and debtor of said Gleason; that on the 23d day of July, 1872, defendant answered said garnishment, admitting that defendant owed and was indebted to said Gleason, at the time of the service of garnishment, on open account, in the sum of $218.16; that on the 26th day of July, 1872, judgments were rendered against defendant in favor of the plaintiffs in said executions, one for $91.80 and costs, and the other for $60.50 and costs. The answer alleges that the garnishment was served on defendant and the answers thereto made, before notice of sale or assignment of said account had been given, or received by defendant.

Plaintiffs, in their reply, deny all the allegations of the answer.

The case was tried by the court without the intervention of a jury, and judgment rendered for the defendant, from which plaintiffs have appealed to this court. The chief error complained of is the action of the court in refusing the third instruction asked for by plaintiffs, and in giving the first instruction asked for by defendant.

The instruction refused by the court, is as follows: To constitute an account stated, it is not necessary that the admission of the demand should be made in express terms, and if the said Gleason rendered his account to defendant, exhibiting the items thereof, and the amount due to him for boarding employees in the month of June, 1872, and if the same was never objected to by defendant, the acquiesence of defendant therein, is to be taken as an admission that the account was truly stated; nor is it material whether the admission was made before or after the assignment of said account or demand. The following is the instruction given for defendant over the objection of plaintiffs: That an account stated, in the law, is an account settled between the debtor and creditor therein, in which a sum of money or a balance is agreed on, and an acknowledgment by one in favor of the other, of a balance or sum certain to be due, and an express or implied promise to pay the same by one to the other; and the plaintiffs in this cause having sued and declared--not upon an itemized account--but upon an alleged account stated, the court cannot find for plaintiffs herein, unless the plaintiffs have, by evidence, proven an account stated between John Gleason and defendant, as alleged by plaintiffs in their petition, and the assignment of such account stated by said Gleason to plaintiffs, as alleged in their petition.

The instruction given on the part of defendant, as to what constitutes an account stated, seems to be in harmony with the views expressed in 2 Green. Ev., Secs. 126, 127, and in the case of Cape Girardeau & State Line R....