Wehringer v. Ahlemeyer

• Decision Date: 09 November 1886
• Parties: JOSEPH WEHRINGER, Respondent, v. FRED. AHLEMEYER, Appellant.
• Court: Missouri Court of Appeals

23 Mo.App. 277

JOSEPH WEHRINGER, Respondent,

v.FRED. AHLEMEYER, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 9, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

BROADHEAD & HAEUSSLER, for the appellant: The cause of action known as ““““account stated,” is an independent and distinct cause of action. Cape Girardeau v. Kimmel, 58 Mo. 83; Brown v. Kimmel, 67 Mo. 430; Ward v. Farrelly, 9 Mo. App. 370; Kent v. Highleyman, 17 Mo. App. 9. The circuit court erred in permitting plaintiff to file the amended statement upon the trial. Murphy v. Bedford, 18 Mo. App. 279; Newman v. Kenton, 79 Mo. 385.

HENRY BOEMLER, for the respondent: The amendment was properly made. Vaughn v. Railroad, 17 Mo. App. 4; Henson v. Jones, 20 Mo. 595; Butts v. Phillips, 79 Mo. 302; King v. Railroad, 79 Mo. 328. The finding of the jury, as to the amount, is conclusive. Remmler v. Schmit, 15 Mo. App. 192; Humphries v. Printing Co., 10 Mo. App. 180; Smith v. Hutchinson, 83 Mo. 687; Hamilton v. Berry, 74 Mo. 176.

LEWIS, P. J., delivered the opinion of the court.

Suit was commenced before a justice of the peace on an open account, as follows:

“ST. LOUIS, July 31, 1885.

Fred. Ahlemeyer to Joseph Wehringer, Dr.

For services rendered as hired hand from March 3, 1882, to July 4, 1885, at $15 per month

$630 00

Credit by cash

442 50

$187 50

The plaintiff had judgment for $72.50, from which the defendant appealed to the circuit court, where the plaintiff got a verdict for one hundred dollars. The following entries appear in the bill of exceptions:

Be it remembered, that on the trial of above cause following proceedings were had, to-wit: Plaintiff stated that he did not claim to recover on the account filed with justice, claiming a balance of $187.50, but withdrew said claim, and asked leave to file the following as an amended account, claiming a balance due as two hundred and fifty dollars, to-wit:

Fred. Ahlemeyer to Joseph Wehringer, Dr.

1883.

March to July, 1885. To 29 months as a common laborer, at $15 per month, amounting to

$435 00

Credit by cash

185 00

$250 00

And that on this account he claimed a balance due of two hundred dollars, as agreed upon at settlement between parties. * * *

It appeared this amended account was filed with the justice of the peace on September 2, 1885, and was sent up by the justice to the circuit court, with the papers in the case, but no mention of it, or of its filing, was made in the transcript of the justice of the peace.”

The second of these entries contradicts the first, which, if it stood alone, would be conclusive that the amended account was first introduced in the circuit court. The trial before the justice took place on September 2, and his judgment was rendered on September 5, 1885. The paper was thus before him three days while the cause was pending, but nothing indicates that it was considered by the justice, or that it had anything to do with his judgment. The omission from the transcript might not be conclusive against a showing by parol that the amended account was treated by the justice as the foundation of the suit, and that his judgment had reference to that alone. But, in the absence of everything which might indicate these facts, we are bound to consider the account first filed as the only matter before the justice, and carried up by the appeal. That account claimed a balance due of $187.50. The amended demand was for two hundred and fifty dollars. Such an increase amounted, in effect, to a change of the demand, which thus was not “the same cause of action, and no other, that was tried before the justice,” as is required by Revised Statutes, section 3058. To this was added a change by parol to an action on an account stated, when the petition gave notice only of a demand on open account.

The plaintiff testified that he worked for the defendant, as a gardener, from March, 1883, until July, 1885. That his wages came to four hundred and thirty-five dollars, and he received two hundred and forty-three dollars in all. That in August, 1885, the parties compared their accounts and had a settlement, when it was agreed between them that the defendant owed him a balance of two hundred dollars, after paying him eight dollars at that time, and that this balance yet remained unpaid. The defendant testified to...