Thomas E. Coale Lumber Co. v. Crosby

• Decision Date: 08 October 1929
• Docket Number: No. 20684.,20684.
• Citation: 20 S.W.2d 552
• Parties: THOMAS E. COALE LUMBER CO. v. CROSBY.
• Court: Missouri Court of Appeals

20 S.W.2d 552

THOMAS E. COALE LUMBER CO. v. CROSBY.

No. 20684.

St. Louis Court of Appeals. Missouri.

October 8, 1929.

Rehearing Denied October 23, 1929.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by the Thomas E. Coale Lumber Company against R. H. Crosby, doing business as the Crosby Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. W. Henderson and A. Lowell Morris, both of St. Louis, for appellant.

Wilson & Trueblood, of St. Louis, for respondent.

SUTTON, C.

This action is for $565.59 on an account stated. The cause was tried to a jury. The court gave an instruction in the nature of a demurrer to the evidence. Whereupon, plaintiff took an involuntary nonsuit, and judgment was given accordingly. Plaintiff in due time filed its motion to set aside the involuntary nonsuit, which the court overruled. Plaintiff appeals.

The giving of the instruction in the nature of a demurrer to the evidence is assigned as error here.

The account in suit grows out of dealings had between the parties in 1924. Plaintiff was engaged in the wholesale lumber business, having its office in St. Louis. Defendant was a manufacturer and shipper of lumber, being located at Picayune, Miss. Dealings between plaintiff and defendant commenced in 1923. Plaintiff purchased lumber from defendant to fill orders received from his customers. Defendant shipped the lumber direct to the customers according to instructions received from plaintiff. Plaintiff customarily paid defendant 75 to 80 per cent. of the value of each order for lumber before shipment was made. Plaintiff's last order given to defendant was in the summer of 1924. Shipment was made pursuant to this order, and a dispute arose concerning the quality of the lumber. The plaintiff contended that the lumber was deficient in quality, insisted that defendant owed it a balance on account of such deficiency, and demanded payment thereof. Defendant insisted there was no deficiency in the quality of the lumber, claimed there was a balance due him from plaintiff, denied all liability, and refused to pay plaintiff any amount, on its claim. After repeated demands by plaintiff for payment of the balance claimed by it, and repeated denials of liability, and refusals to pay by defendant, plaintiff, on January 26, 1925, sent defendant an account showing a balance of $565.59 due plaintiff. Defendant made no response to the account so sent him. This is the account on which the plaintiff sues. Prior to the rendition of this account, the disagreement of the parties had gone to the extent that they had written each other that the matter had been referred to their respective attorneys, and plaintiff, in its final letter, had clearly indicated that it wanted no further correspondence with defendant concerning the matter.

Plaintiff, in support of its assignment of error, invokes the general rule that an account rendered becomes an account stated when not objected to within a reasonable time. But this rule has no application where, as here, the alleged debtor had previously disclaimed all liability, or the parties had already come to a disagreement, when the account was...