United States Water & Steam Supply Co. v. Dreyfus

• Decision Date: 16 February 1904
• Citation: 104 Mo. App. 434,79 S.W. 184
• Court: Missouri Court of Appeals
• Parties: UNITED STATES WATER & STEAM SUPPLY CO. v. DREYFUS.<SMALL><SUP>*</SUP></SMALL>

79 S.W. 184

104 Mo. App. 434

UNITED STATES WATER & STEAM SUPPLY CO. v. DREYFUS.^*

St. Louis Court of Appeals. Missouri.

February 16, 1904.

PLEADING—AMENDMENT—CORPORATE CHARACTER OF PLAINTIFF—COMPROMISE —WHAT CONSTITUTES.

1. Under Rev. St. 1899, § 657, providing that the court may at any time before final judgment, in furtherance of justice and on proper terms, amend any pleading, etc., by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading to the facts proved, it is proper to permit a plaintiff, after an appeal from a justice to the circuit court, to amend its complaint, in response to defendant's objection, by adding the words "a corporation" to its title.

2. Where the amount due for goods sold is not in dispute, but the purchaser claims that the seller agreed to accept the assignment of a claim against a third person in part payment, the seller's retention of the difference sent to him in cash by the purchaser, while rejecting the assigned claim, is not a compromise.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by the United States Water & Steam Supply Company against A. A. Dreyfus. Judgment for plaintiff, and defendant appeals. Affirmed.

Wright Bros. & Blair, for appellant. Heffernan & Heffernan, for respondent.

REYBURN, J.

From a judgment before a justice of the peace, defendant appealed to the circuit court of Greene county, where he raised the objection that the account sued on did not show upon its face whether respondent was a partnership or incorporated. The court permitted respondent to add the words "a corporation" to its title, and subsequently an amended statement was filed by leave of court, and, a jury being waived, the case proceeded to trial before the court. The evidence developed that appellant, a resident of Springfield, bought a bill of goods from respondent, at the office of the latter, in Kansas City, amounting to $104.39, for cash. The shipment was made, but payment was withheld, despite repeated demands for the debt; and in the end the appellant sent a draft for $14.38, together with an order on one Seymour for $90, to be in full settlement of the indebtedness. Respondent declined the order, and returned it, but placed the $14.38 to credit of appellant, and subsequently brought this action for the balance. The testimony on behalf of plaintiff was in form of depositions of witnesses in its employ, conversant with the transaction, and some correspondence between the parties. At the trial in the circuit court, the appellant first testified, and stated that, before purchasing the merchandise from respondent, an agreement was had with respondent, through its secretary and manager, that an indebtedness of $90 from one of plaintiff's workmen (one Seymour) to defendant should be accepted by the plaintiff in payment of any goods bought, and, if the amount of his purchase exceeded the sum due by Seymour, to send a...