Schwartz v. Fein

• Decision Date: 15 June 1971
• Docket Number: No. 33855,33855
• Citation: 471 S.W.2d 679
• Parties: Burnett SCHWARTZ, Surviving Partner of Edward K. Schwartz and Burnett Schwartz, Plaintiff-Respondent, v. Albert FEIN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 679

471 S.W.2d 679

Burnett SCHWARTZ, Surviving Partner of Edward K. Schwartz and Burnett Schwartz, Plaintiff-Respondent, v.Albert FEIN, Defendant-Appellant.

No. 33855.

St. Louis Court of Appeals, Missouri.

June 15, 1971.

Motion for Rehearing or for Transfer to Supreme Court Denied

Oct. 6, 1971.

Raskas, Ruthmeyer & Schneider, St. Louis, for plaintiff-respondent.

Newmark & Baris, by Leonard J. Frankel, St. Louis, for defendant-appellant.

CLEMENS, Commissioner.

Plaintiff sued defendant for an attorney fee and won a verdict and judgment for $2,500 plus $750 interest.Defendant appeals.

Plaintiff sued in two counts, quantum meruit and account stated.Defendant first contends the trial court should have granted his motion for directed verdict on the quantum meruit count at the close of plaintiff's opening statement.This, on the ground the opening statement showed plaintiff intended to rely on account stated and did not state facts to support quantum meruit.We reject this contention.

The premise of defendant's argument is that plaintiff had an affirmative duty to make an opening statement disclosing facts to support quantum meruit.Making an opening statement is a privilege, not an obligation.The case of Hays v. Missouri Pacific Railroad Company, Mo., 304 S.W.2d 800(1--7), describes two situations where a trial court may direct a verdict at the close of an opening statement.First, where plaintiff's opening statement discloses a fact precluding plaintiff's recovery as a matter of law; second, when it affirmatively appears plaintiff has covered the whole of his case in the opening statement and the facts stated would not make a submissible case.Neither situation existed here.

Since the plaintiff had no affirmative duty to make an opening statement on his quantum meruit count, the trial court properly refused to grant a directed verdict on that count.Plaintiff could, and did, reserve his election until the close of evidence.Kaiser Aluminum & Chemical Sales, Inc. v. Lingle RefrigerationCo., Mo.App., 350 S.W.2d 128(5--8).

We pass on to the two points concerning the merits.Defendant admits he promised to pay plaintiff a $2,500 fee, but contends plaintiff failed to make a case on account stated since defendant's promise was provisional rather than definite.Defendant further contends the five-year statute of limitations barred plaintiff's action.These in turn.

Most facts are undisputed.Plaintiff had represented defendant in four lawsuits brought by a bank on $38,000 in notes defendant had made or endorsed.Plaintiff got all the suits settled to defendant's satisfaction and soon thereafter they discussed plaintiff's fee.They agreed a $2,500 fee was fair and defendant agreed to pay that amount.Testimony differed about when the fee was to be paid.Plaintiff said there was no agreement about just when defendant was to pay; defendant said there was.At the time plaintiff's $2,500 fee for the bank cases was agreed upon plaintiff was also representing the defendant's wife in threatened condemnation proceedings concerning a hotel she owned.At the trial of this casedefendant testified he agreed to pay plaintiff when his wife got the money from the hotel case.He also testified it was agreed plaintiff's fee in the hotel case would be large enough to cover the $2,500 fee for the bank cases.¹Plaintiff denied both limitations.

In Urban Painting & Dry Wall Co. v. Sander, Mo.App., 446 S.W.2d 500(1, 2), we held an action on account stated arose 'when the parties, having had financial transactions between them, arrive at an agreement as to the balance due and the party debtor acknowledges his obligation to the party creditor and promises to pay.* * * The amount or balance so agreed upon constitutes a new and independent cause of action, superseding and merging the antecedent causes of action.'

Plaintiff submitted his case by InstructionNo. 3, MAI 26.04--Account Stated: 'Your verdict must be for plaintiff if you believe: First, after the transaction mentioned in evidence plaintiff and defendant agreed in good faith that the stated sum of $2,500.00 was the amount defendant owed plaintiff, and Second, thereafter defendant failed to pay this stated sum unless you believe the plaintiff is not entitled to recover by reason of Instruction Number 4 or 5.'Instructions numbers 4 and 5 were the affirmative defense instructions of payment and the five-year statute of limitation: 'Your verdict must be for defendantAlbert Fein if you believe that plaintiff has already been paid for the services furnished to defendant.''Your verdict must be for defendantAlbert Fein if you believe the account was stated between the parties more than 5 years prior to the date this lawsuit was filed.'

The verdict for plaintiff under these instructions--for plaintiff on his verdict director and against defendant on both affirmative defenses--compels us to accept plaintiff's version of the facts in measuring the sufficiency of his evidence.

We reject defendant's point that his promise to pay plaintiff was 'provisional, i.e., contingent or alternative.'The verdict-consistent evidence was to the contrary and was sufficient to make a case on account stated.

Defendant main attack on the judgment is based on §§ 516.100 and 516.120 V.A.M.S., the five-year statutes of limitation.Plaintiff filed this suit August 6, 1965.To bar his cause of action it must have accrued before August 6, 1960.Since the parties' oral agreement to the account stated created a new cause of action, the date of their conversation fixes the date of accrual.The...