State ex rel. Woodson v. Trimble

• Decision Date: 16 August 1926
• Docket Number: 26503
• Citation: 287 S.W. 626
• Parties: STATE ex rel. WOODSON v. TRIMBLE et al
• Court: Missouri Supreme Court

287 S.W. 626

STATE ex rel. WOODSON v. TRIMBLE et al

No. 26503

Supreme Court of Missouri, Second Division

August 16, 1926

C. H Mayer and B. J. Woodson, both of St. Joseph, for relator.

Culver Phillip & Voorhees, of St. Joseph, for respondents.

OPINION

HIGBEE, C.

Certiorari to quash the opinion and judgment of the Kansas City Court of Appeals, reversing and remanding the judgment in Charles R. Woodson v. LeoGreenwald Vinegar Company, 272 S.W. 1084.

The action is upon an account stated for 2 carloads of cider apples shipped by plaintiff to defendant. The answer is a general denial. Plaintiff testified that he shipped the apples; that Mr. Leo, defendant's representative, called him to the defendant's plant; that, on examination, they found about 10 per cent. or 4,000 pounds of the apples damaged and not sound cider apples, and they figured off a deduction of $ 50 because the Jonathan apples in the shipment were in bad shape; that this, with other deductions agreed upon, left $ 512.71 due plaintiff for the apples, for which Leo agreed to mail plaintiff a check.

The evidence for the defense is that plaintiff called at the plant and discussed the proposition of figuring off 4,000 pounds, but there was no agreement as to settlement. The defendant offered to prove:

'As a circumstance to show the improbability of the defendant making any such contract and in support of its contention, and as a circumstance to show that no such settlement was ever actually made, that the apples were rotten and full of worms and not fit for making cider or vinegar or for any purpose, and that the defendant refused to receive them, and they were dumped by the railroad company.'

The court sustained an objection to this offer. There was a verdict for plaintiff for $ 512.71, and judgment was rendered accordingly.

The opinion of the Court of Appeals correctly holds, we think, that the trial court erred in excluding this offer of proof. Relator contends that the opinion in this respect is in conflict with the ruling of this court in Koegel v. Givens, 79 Mo. 77, where Judge Philips, at page 79, said:

'There is no question but that the statement filed shows a cause of action as on an account stated. 'The word 'settlement' implies that there were previous transactions between the parties' Cape Girardeau &amp St. L. R. R. Co. v. Kimmel, 58 Mo. 84. To maintain the action, it was only necessary to prove that the settlement was made. If he should fail to make this proof, he could not fall back on the original account and recover thereon. The defendant objected to plaintiff showing that 'he performed work and labor for the defendant' I do not think there was any substantial error in this. The manner of introducing this proof, in a mere formal way, was manifestly as a matter of inducement to show there was a foundation for an adjustment, a settlement, between the parties. 'He may prove the earlier transactions, if necessary, as a foundation for the settlement and in order to explain it' Cape Girardeau, etc., v. Kimmel, supra, 85. But the defendant complains that he was not allowed a like privilege by the trial court. A reference to the bill of exceptions will show, however, that he sought to go much farther. 'The defendant then offered to prove the character of the work done -- and to show by the testimony of experts that the labor performed by plaintiff was...