Riley v. Stevenson

• Court: Missouri Court of Appeals
• Writing for the Court: GOODE, J.
• Citation: Riley v. Stevenson, 118 Mo. App. 187, 94 S.W. 781 (Mo. App. 1906)
• Decision Date: 24 April 1906
• Parties: RILEY, Respondent, v. STEVENSON, Appellant

94 S.W. 781

118 Mo.App. 187

RILEY, Respondent, v. STEVENSON, Appellant

Court of Appeals of Missouri, St. Louis

April 24, 1906

Appeal from Monroe Circuit Court.--Hon. David H. Eby, Judge.

AFFIRMED.

Judgment affirmed.

J. H Whitecotton and W. W. Barnes for appellant.

The court should have given defendant's instruction in the nature of a demurrer offered at the close of plaintiff's case. The respondent had wholly failed to sustain the issues made by the pleadings filed in this case. The account filed shows no contractual liability and on the account stated recovery could only be had on the quantum meruit theory. Respondent's testimony in chief tended to prove a liability on contract, and the demurrer should have been sustained. The rule is well settled that a plaintiff cannot declare on one cause of action and recover on another. Hays v. Bunch, 91 Mo.App. 467; Christy v Price, 7 Mo. 430; Penninger v. Reilley, 44 Mo.App. 261.

James P Boyd for respondent.

OPINION

GOODE, J.

This case originated before a justice of the peace on the following statement of account:

"Mr. William B. Stevenson "April 18, 1903.

To C. Riley, Dr.

"To one (1) telephone and telephone stock, . . . . $ 39.00." Defendant filed this answer or counterclaim:

"Now at this day comes the defendant herein and denies that he owes plaintiff anything, and further states that there is due this defendant from the plaintiff as per contract, the following amount and sum:

"To damages to fence

$ 25.00

To damages to barn

5.00

To damages to garden and lawn

5.00

Total

$ 35.00

"Which he pleads as his counterclaim and setoff."

The case proceeded in regular course to the circuit court, resulted in a verdict and judgment for plaintiff and an appeal was taken to this court.

Plaintiff sold defendant a farm in Monroe county September 24, 1902. After the sale of the farm had been closed, plaintiff proposed to sell defendant a telephone and some stock in a company known as Middle Grove and Paris line. Whether the company was incorporated or not, or the stock was merely a token of the interest held by Riley in a sort of partnership in an unincorporated concern, is not clear, nor is the question material. Riley testified that he offered to sell his interest to defendant for $ 39 and the latter agreed to buy it for that price, but afterwards refused to pay the money. Defendant testified that he told Riley he wanted the telephone which was in the farmhouse and asked Riley what it was worth; that the latter said defendant could have it for a reasonable price and no more was said about the matter. The counterclaim was for damages alleged to have been done to the fencing around the farm and to the farm itself, by horses and mules chewing on the fencing and getting into the garden and lawn. This important matter rests on an alleged contract said to have been made between Riley and Stevenson January 17, 1903, and on the day Stevenson gave Riley a check in payment for the farm Here is the contract as testified to by Stevenson:

"Q. I will get you to state whether or not the contract with reference to this account, setoff, this bill, was in writing or not? A. No, sir.

"Q. Where did the conversation occur? A. Down in Mr. Hill's office. I wrote Mr. Riley a check, handed it to him, and I asked him if the place was all right and he said it was; if it was not he would make it right."

Stevenson swore that after that day he went somewhere and when he returned the next day this was the state of affairs:

"On the 18th of January I went there and there was a lot of mules there eating the fence. . . . I found them mules there; they had eaten the fence, garden and barn, and I found hogs in. I went to Mr. Riley and told him about it; said he would see about it; and I went to him the second time. Said he guessed he would turn it over to me, that he would turn it over to me."

Stevenson swore that some time after January, 1903. Riley said he did not want to do anything regarding the damage except to fix some palings on the fence.

The court instructed the jury to return a verdict in favor of plaintiff on the counterclaim and this ruling was unquestionably right....