Spartan Carpet Distributors, Inc. v. Bailey
| Decision Date | 17 February 1987 |
| Docket Number | No. 51678,51678 |
| Citation | 728 S.W.2d 236 |
| Parties | SPARTAN CARPET DISTRIBUTORS, INC., Appellant, v. Red BAILEY, Respondent. |
| Court | Missouri Court of Appeals |
James A. Bingley, Leritz, Reinert & Duree, P.C., St. Louis, for appellant.
N. Barrett Braun, Braun, Stewart & Anderson, Inc., Clayton, for respondent.
Action by appellant (seller) for balance due on carpet sold to respondent (buyer). Seller originally filed, in Associate Circuit Court, a petition for amount due on an open account that buyer, a carpet layer, had with seller. After a judgment for buyer, seller took a trial de novo. After the trial de novo, the court, sitting without a jury, found for buyer. We affirm.
Seller asserts on appeal that it was entitled as a matter of law to recover on a cause of action on account stated. In response to the appeal, buyer argues that seller's action was based on a theory of failure to pay an open account, not account stated, and that seller failed to establish all the elements necessary for recovery under such a theory. Buyer argues that even if we find the case was tried on a theory of account stated, seller's evidence failed to establish all the elements of that cause of action. In its opening statement seller stated it was proceeding "under the theories of an open account and accounts stated." Buyer did not object and in fact indicated he would be presenting evidence to support a defense to an action grounded in account stated. We do not need to decide whether seller properly brought an action in account stated because we hold the evidence did not require a finding that as a matter of law seller was entitled to recovery on a theory of account stated.
To establish a cause of action in account stated, seller must prove (1) the parties had prior financial dealings, an open account; (2) the parties reached an agreement as to the amount due and owing on that account; and (3) buyer acknowledged this obligation and made an unconditional promise to pay. Whelan's, Inc. v. Bob Eldridge Const. Co., 668 S.W.2d 244, 247 [2-4] (Mo.App.1984). Buyer admits there was an open account, that $2,889.63 was owed on the account, that on June 19, 1983, he told seller's agent he would pay the account in full in three days, and that he did not pay. What was in dispute is whether the promise to pay was conditioned upon seller's...
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...on that account; and (3) buyer acknowledged this obligation and made an unconditional promise to pay." Spartan Carpet Distributors, Inc. v. Bailey, 728 S.W.2d 236 (Mo. Ct. App. 1987). Plaintiff does not contend that defendant had no breach of contract or account stated claim; that is, plain......
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