Roberts v. Neal

• Decision Date: 17 May 1909
• Citation: 137 Mo. App. 109,119 S.W. 461
• Parties: ROBERTS v. NEAL.
• Court: Missouri Court of Appeals

119 S.W. 461

137 Mo. App. 109

ROBERTS v. NEAL.

Kansas City Court of Appeals. Missouri.

May 17, 1909.

JUDGMENT (§ 590)—CONCLUSIVENESS—MATTERS CONCLUDED.

Where plaintiff sued for money had and received, to recover for overpayments made in goods and money on a note given defendant's husband, since deceased, the judgment therein was a bar to a second action by him for goods sold and delivered against the same defendant for an item of merchandise included in the subject-matter of the former suit, which item was dismissed by plaintiff before the former case went to the jury.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Action by David C. Roberts against Virginia L. Neal. Judgment for defendant on the pleadings, and plaintiff appeals. Affirmed.

See, also, 114 S. W. 1120.

Lozier, Morris & Atwood and Martin E. Lawson, for appellant. Harry Friedberg and Clinton A. Welsh, for respondent.

BROADDUS, P. J.

The plaintiff sues on an account for goods sold and delivered at the special request of defendant. The answer, among other defenses, sets up the following:

"Defendant, for other and further defense to this cause of action, alleges that plaintiff, on October 5, 1905, commenced a suit against the defendant herein in the circuit court of Clay county, Mo., and in said petition alleged, among other things, that a note, which had been originally given to John Neal, then deceased, at the time said suit was instituted, that the plaintiff herein, and other parties named in said petition, did on the 8th day of December, 1886, duly make and execute said note for the sum of $1,500, bearing 10 per cent. interest per annum thereon from date until paid, which note was due and payable 12 months after date to said Neal, and that said note was duly delivered to said Neal. This plaintiff, who was plaintiff in said suit, alleges that said note was fully paid off and discharged on December 4, 1897. That the plaintiff in this suit who was plaintiff in said suit, alleged against this defendant, who was the defendant in said suit, among other things the following:

"`And thereafter plaintiff, in ignorance of the fact that said note was paid off, made further payments on said note to defendant as follows: On March 8, 1898, the sum of $25; on May 25, 1898, the sum of $50; on October 5, 1898, the sum of $50; on April 19, 1898, the sum of $26.45; on December 14, 1898, the sum of $25; on September 9, 1899, the sum of $40; on December 7, 1899, the sum of $25; on August 25, 1902, the sum of $50; and on January 1, 1905, the sum of $578.60. The payment of $94.35, made April 25, 1896, and all payments hereinabove stated subsequent thereto, were credited on a slip of paper attached to, or kept with, said note, except the payment of $50, made August 25, 1902, which was not credited on said paper, nor on said note. Plaintiff states that the payment of $94.35, made by him on April 25, 1896, was made in merchandise; the payment of $40, made September 9, 1899, was made in property, so far as plaintiff now knows and is able to state; the payment of $578.60, made January 1, 1905, was made by the following items:

                The defendant's mercantile account
                 being merchandise received by her.. $279 40
                Thomas Neal's merchandise account...   24 00
                Thomas Neal's note..................  108 60
                Season of two colts.................   20 00
                The defendant's mercantile account
                 with the mercantile firm of Roberts
                 & Anderson.........................   13 15
                An order from defendant on H. W
                 Montgomery ........................   10 00
                The mercantile account of Thomas
                 Neal with the mercantile firm of
                 Roberts & Anderson.................  123 45'
                

"The defendant alleges that the said sum of $578.60 above set forth, which was alleged in said petition as above mentioned, was composed of, in part, the items sued for in this...