Risk v. Dale

• Decision Date: 03 May 1915
• Citation: 176 S.W. 529,188 Mo.App. 726
• Parties: BEN B. RISK, Appellant, v. CHARLES DALE, Respondent
• Court: Kansas Court of Appeals

176 S.W. 529

188 Mo.App. 726

BEN B. RISK, Appellant, v. CHARLES DALE, Respondent

Court of Appeals of Missouri, Kansas City

May 3, 1915

Appeal from Platte Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

Frank Settle and James H. Hull for appellant.

Terrance Riley and Guy B. Park for respondent.

OPINION

ELLISON P. J.

This action is on an account stated. The verdict was for plaintiff and a motion for new trial sustained. Plaintiff bought a carload of tobacco from different growers. He claims that defendant became equally interested in it with him and they were to share the profit or the loss and that there was a loss of $ 999.12, one-half of which, $ 499.56 fell upon defendant.

There was evidence tending to prove that defendant became equally interested in the tobacco and that after its sale, he and plaintiff had a settlement in which, after deducting total purchases by plaintiff from net sale the total loss was found to be $ 999.12, and that that sum was divided into halves leaving a balance against defendant of $ 499.56, being the amount for which this action was instituted.

The reason assigned by the trial court for sustaining defendant's motion for new trial, was that error was committed in giving plaintiff's second instruction, which reads as follows: ". . . . if the jury find from the evidence that plaintiff and defendant had a settlement and that by this settlement a balance was due plaintiff from defendant in the sum of $ 499.56, which was due and unpaid then the jury may find that there was an implied promise by defendant to pay plaintiff the amount found due him."

The objection stated to the instruction is that it does not submit the hypothesis whether defendant assented to, or acknowledged the balance found to be against him. The first part of the instruction seems to recognize the necessity for an acknowledgment or assent to the balance found, but the latter part (quoted above) states, in terms, that the mere settlement and balance is proof of a promise. We think the trial court was right in concluding it was erroneous. It entirely omits the fundamental requisite that, in addition to the balance being found, defendant should have agreed, or assented that it was correct. It is, however, said to be supported by Koegel v. Givens, 79 Mo. 77, where the Supreme Court Commission say, that to maintain an action on an account stated, "it is only necessary to...