Rechnitzer v. Vogelsang

• Decision Date: 13 March 1906
• Citation: 93 S.W. 326,117 Mo. App. 148
• Parties: RECHNITZER v. VOGELSANG.
• Court: Missouri Court of Appeals

93 S.W. 326

117 Mo. App. 148

RECHNITZER v. VOGELSANG.

St. Louis Court of Appeals. Missouri.

March 13, 1906.

1. JUSTICES OF THE PEACE—PLEADINGS—STATEMENT OF ACCOUNT.

In an action before a justice of the peace on an account, filed by a plaintiff, charging defendant with merchandise as per bills, not specifying the kind of merchandise or the date at which it was sold, was insufficient to justify the judgment for plaintiff.

2. SAME—APPEAL—AMENDMENT OF PLEADING IN CIRCUIT COURT.

Where an account filed by the plaintiff in an action before a justice of the peace was insufficient to state the cause of action, because of failure to specify kinds of merchandise and dates at which they were sold, an amendment may be allowed in the circuit court on appeal.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by J. S. Rechnitzer against Henry B. Vogelsang. From judgment in favor of plaintiff, defendant appeals. Reversed.

Stephen Rodgers, for appellant. Robert Funkhouser, for respondent.

GOODE, J.

Plaintiff began this action before a justice of the peace by filing the following account:

                              J. S. Rechnitzer
                Publisher of the Columbia, Grand and Hopkins'
                    Imperial Programs and All First-Class
                             Advertising Mediums
                Artistic Printing, Lithographing, Blank Book
                              Mfg. and Binding
                Estimates Cheerfully Given. Catalogue Price
                                   Lists
                  St. Louis, 720 Century Bldg., June, 1903.
                Mr. Henry Vogelsang, acct. for Edw. J., 10th
                                 and Olive.
                To Mdse. as per bills....................$68 00
                To  "    "   "    "  .................... 11 80
                                                         ______
                                                         $79 80
                1903
                June  9.  By  Cash..............$5 00
                 "   16.  "    "  .............. 2 00      7 00
                                                         ______
                            Balance due                  $72 00
                

To the account was attached the following paper:

In First District Justice Court.

J. S. Rechnitzer, Plaintiff, v. Henry B. Vogelsang, Defendant.

Before Louis C. Spies, Justice of the Peace. Account.

                Henry B. Vogelsang, To J. S. Rechnitzer, Dr.
                 .....................................$72.80
                 Robert Funkhouser, Attorney for Plaintiff.
                

An appeal was taken from the judgment rendered in the justice's court in favor of plaintiff, but on the trial in the circuit court plaintiff again obtained judgment, from which the defendant prosecuted the present appeal.

The evidence tends to show that in the year 1899, defendant's son, Edgar Vogelsang, contemplated going into business on his own account and preparatory to doing so wished to purchase some pamphlets, labels, letter heads, and envelopes from plaintiff. Plaintiff refused to sell the goods to the son for the reason that he was not acquainted with him, but on the recommendation of a friend agreed to sell them if defendant, whom he knew, would stand good for them. Plaintiff's testimony goes to show the sales were made at defendant's request on his promise to pay for the goods; that the merchandise was charged to defendant on plaintiff's business books, and he alone was looked to for payment. On June 9, 1903, defendant paid $5 on the bill, promised to pay some more, and in about a week made another payment of $2. Defendant swore that he never had any dealings with plaintiff in his life; that one day plaintiff stopped him on the street, and told him he had a bill against his son for $37, which he wished defendant to have his son pay; that defendant told plaintiff the young man was a beginner in business, and plaintiff might have to wait awhile; that plaintiff frequently solicited payment on the account from defendant, and on one or two occasions defendant gave him a few dollars, because plaintiff represented that he was in distress for money. There was a conflict of testimony as to whether the contract for the sale of the goods was made directly with the defendant, or whether the latter only gave a collateral promise to pay the bill if his son did not.

Complaint is made of the rulings on the instructions, and it is contended the statement filed with the justice is insufficient to support the judgment. In our opinion the latter point is well taken. It will be observed that the statement contains no description of the merchandise sold, or the dates on which the sales were made. For aught it contains, the goods may have been as well groceries or hardware, as stationery, and the dates may have been during any period preceding June, 1903. In fact, the sales occurred on different dates in the year 1899. The statement was insufficient to apprise the defendant of the nature of the claim against him or to bar another action on the same demand. This is true, because there is nothing in it by which the...