Skillman v. Ballew

• Decision Date: 05 May 1930
• Docket Number: No. 16885.,16885.
• Citation: 27 S.W.2d 1036
• Parties: SKILLMAN et al. v. BALLEW.
• Court: Missouri Court of Appeals

27 S.W.2d 1036

SKILLMAN et al. v. BALLEW.

No. 16885.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

Action by Miles Skillman and others against Fannie Ballew. Judgment for plaintiffs, and defendant appeals.

Affirmed.

D. C. Rogers, of Fayette, for appellant.

Tyre W. Burton, of Fayette, for respondents.

BOYER, C.

Plaintiffs sued in the justice court and named appellant and her husband as parties defendant; and stated that plaintiffs were partners in business under the firm name of M. G. Skillman & Son, "and for their cause of action state that on diverse dates from the 3rd day of March, 1928, to the 18th day of January 1929, they sold certain goods and groceries to the above defendant, Earl Ballew, and defendant, Fannie Ballew, and same were sold at the special instance and request of the said Earl Ballew and Fannie Ballew, items of which sales are filed herewith and marked Exhibit A."

The petition further states that the prices charged were just; that the merchandise so sold was necessaries for defendant Fannie Ballew and the family of Earl Ballew and Fannie Ballew, and was so used by them in their home; that the balance due was $67.43. The petition further states that Fannie Ballew is possessed of sufficient property to satisfy said account; that her husband was declared a bankrupt in the summer of 1928, was discharged, and did not list the account as a debt; and that plaintiffs had no notice of such proceeding; that the husband is now dead, and that Fannie Ballew has possession of the farm formerly operated by her husband and all personal property thereon as the head of the house, and on divers occasions assumed the payment of said account, after which plaintiffs extended further credit and permitted her to make further purchases and increase said indebtedness.

Judgment was for plaintiffs and defendant appealed to the circuit court and filed a demurrer to the petition, which was overruled. Before trial in the circuit court plaintiffs filed the following amended petition.

"Now at this day come the plaintiffs herein and leave of court being first had file this their first amended petition and state that they were at all the times hereinafter mentioned partners in business under the style and firm name of M. G. Skillman and Son; and for their cause of action state that on diverse dates from the 3rd day of March, 1927, to the 18th day of January, 1929, they sold certain goods and groceries to Earl Ballew and Fannie Ballew, who were then husband and wife and living together in the same house, and said goods were sold at the special instance and request of the said Earl Ballew and Fannie Ballew, items of which sales are filed herewith and marked Exhibit "A."

"That the prices and amounts charged for said merchandise were reasonable and just; that there are no credits or set-offs against said account to which defendant is entitled; and that the said merchandise so sold and delivered were necessaries for the defendant and were so used by her in her home.

"That the balance due on the goods so sold and delivered as aforesaid is $67.43.

"Plaintiffs further state that during the summer of 1928 Earl Ballew the husband of the said Fannie Ballew was declared an insolvent in a court of bankruptcy and was granted his discharge as provided by law, that in listing his liabilities in said proceedings the said Earl Ballew did not list the above account, that upon discovering this the plaintiffs herein brought the matter to the attention of the said Earl Ballew and Fannie Ballew, and thereupon the said Fannie Ballew on diverse occasions in the months of November, December 1928, and January 1929 promised the plaintiff's herein that she would pay the bill aforesaid, in consideration of which the plaintiffs agreed to and did forbear suing on said account, and give said defendant further time for the payment of said account, and plaintiffs in consideration of the above promise on the part of the said Fannie Ballew agreed to and did extend further credit on said account to the 5th day of April, 1929, that plaintiffs forbore bringing suit on said account, and gave further time for the payment of said debt until the 5th day of April, 1929, at which time it filed suit on this account in the proper court. Plaintiffs further state that said defendant has not paid said account nor any part thereof, and that the entire amount is due and payable.

"Wherefore plaintiffs pray judgment against said Fannie Ballew for the said sum of Sixty-seven and 43/100 Dollars, also for their costs in this behalf expended, and for legal interest, and that they have execution therefor."

To this petition defendant filed the following answer:

"Comes now defendant and for her answer to plaintiff's petition in said cause, denies each and every allegation in said petition therein contained, and for further answer states that said account was incurred by Earl Ballew and charged to Earl Ballew, and further states that about $15 of said account being for purchases of tobacco was not necessaries for defendant, and further states that $13.68 of said bill was purchased on account of said Earl Ballew prior to March 3, 1928.

"Wherefore, defendant asks to be discharged in said cause."

At the close of plaintiffs' evidence, and at the close of all the evidence, defendant requested an instruction in the nature of a demurrer, which was denied, and the case was submitted to the jury upon the following instruction given by the court.

"The court instructs the jury that if you believe and find from the greater weight of the evidence that the plaintiffs sold and delivered to Earl Ballew and Fannie Ballew certain groceries mentioned in the evidence, between the 3d of March, 1927, and the 18th day of January, 1929, at the special instance and request of both parties, and that the prices charged therefor were the reasonable value thereof, and that a portion of the amount thereof has not been fully paid but remains due to the plaintiffs, then your verdict should be for such amount against the defendant and for the plaintiffs.

"If you do not find the facts to be as aforesaid, your verdict should be for the defendant."

The verdict of the jury was for the plaintiffs, and defendant duly appealed.

Appellant lists her complaints by way of assignments to the number of 13, and points to the number of 18. The first 9 points made may be covered by the statement that the case was erroneously submitted to the jury by the main instruction given because there was no evidence upon which to base it; that plaintiffs tried their case upon the theory of defendant's liability on account of her promise for a consideration to pay it after it had accrued, and not on the theory of a joint account, and that the court therefore erred in instructing on a cause of action which had not been tried either before the justice or the circuit court. Further complaint is made about the admission of evidence and an amendment of the petition by changing a date therein at the close of the evidence.

The evidence on behalf of the plaintiffs, and most favorable to them,...