Opinion
No. 6934.
February 7, 1951.
APPEAL FROM THE CIRCUIT COURT, STODDARD COUNTY, K. W. BLOMEYER, SPECIAL JUDGE.
J. Grant Frye, Gerald B. Rowan, Cape Girardeau, for appellant.
C. A. Powell, Dexter, for respondents.
This is an appeal from judgment of the trial court refusing to permit plaintiff to offer evidence in support of its claim, for the reason that an itemized account was not set forth in the petition or attached thereto and sustaining defendants' motion for a directed verdict. The action was begun in the Circuit Court of Stoddard County, Missouri, July 3, 1941, and trial had thereon January 3, 1950.
Plaintiff's petition states:
"That on or about the 25th day of March, 1939, this plaintiff and the above named defendants made and entered into an agreement in writing delivered at Winona, Minnesota, bearing date of March 25th, A. D., 1939; by the terms of which contract and agreement this plaintiff agreed to sell and deliver to the defendant John Baker at its current wholesale prices certain goods and articles as the said John Baker should reasonably require for sale, and in "consideration of the said agreement on the part of the plaintiff herein, by the said contract and agreement such goods as should reasonably be required by him for sale, and agreed to pay to the plaintiff its current wholesale prices, by remitting to the Company each week at least sixty per cent of the amount received by him for sales or collections made, and at the expiration of the said agreement to pay the whole amount therefor then remaining unpaid; and in consideration of the execution of the said agreement and contract by the plaintiff, the defendants Louis Wilkerson, J. L. Lankford and T. J. Sanders, did by said contract and agreement jointly, severally and conditionally, promise, agree and guarantee to pay for the said goods and other articles, and the prepaid transportation charges thereon, at the time and place, and in the manner in the agreement provided. A copy of the said contract and agreement is hereunto attached marked exhibit "1" and made a part hereof the same as if fully set forth in detail herein.
"That this plaintiff after the execution and delivery of the agreement aforesaid and relying upon the promises and agreements of said defendants and each of them herein contained duly performed the conditions in said agreement required of it to be kept and performed and in the performance thereof it sold and delivered to the defendant John Baker on and between the 28th day of March, 1939, and the 11th day of March, 1940, upon its order and request, under and pursuant to the terms of said agreement free on board cars at Memphis, Tennessee, its products, goods and merchandise in the sum of One Thousand One Hundred Twelve and 50/100 Dollars, an itemized statement of which is hereunto annexed marked Exhibit "2" and made a part hereof.
"That no part of said sum has ever been paid except the sum of Four Hundred Seventy-Two and 16/100 Dollars although payment thereof is long past due and has been duly demanded of each and all defendants.
"That by reason of the foregoing premises, there is now justly due and owing from the said defendants and each of them to this plaintiff the sum of Six Hundred Forty and 34/100 Dollars with interest thereon from the 28th day of May, 1940, at the rate of six per cent annum."
The itemized statement marked Exhibit "2" and made a part of the petition states the account in the following form:
"John Baker, Bertrand, Mo. In Account with
The J. R. Watkins Company. "Charges 1939 Mar 28 Mds 203.94 Mar 28 Mds 76.67 Apr 24 Frt 9.86 1940 Feb 24 Ins 24.72"
There were 31 such items enumerated in the exhibit set out with the dates and amounts as shown above for the year 1939 and 7 such items for the year 1940, making a total charge, since the date of the contract of $1,112.50. The exhibit also contained, under the word "Credits" for the years 1939 and 1940, dates of each credit, an example, "Apr. 26 csh 9.00", and, during the months of the two years, there were 41 such cash items under these credits, making total credits under the contract of $472.16, and the exhibit shows there was a balance due, on May 20, 1941, of $640.34.
Each of the defendants filed separate answers but, since only the allegations of the petition are in issue, it is unnecessary to set out the answers. Defendant, Louis Wilkerson, was never served and the cause was dismissed as to him.
The regular judge was disqualified and, by agreement, K. W. Blomeyer was selected special judge to try the cause.
January 3, 1950, the case was tried and, after the selection of the jury, to support the issues in behalf of plaintiff, deposition of plaintiff's witnesses was offered as evidence. The defendants objected to the offering of any evidence by the plaintiff for the reason that no itemized statement of the account or the alleged account is set forth in the petition or attached thereto as an exhibit.
The trial court excused the jury and, after said objection was made and, out of the presence of the jury, the plaintiff offered to file an itemized statement of the account in the case, which itemized statement was already on file as a part of plaintiff's deposition.
This offering, on the part of plaintiff, was objected to by the attorney for defendants for the reason that the jury had been sworn to try the case and the offering was out of time. The court made this statement: "If the court understands this situation the Statute requires an itemized statement to be filed with the petition", and then the court made the following statement, "The offer made by plaintiff is denied for the reason the petition does not itemize the account and in addition the objection made by defendants to the offering of any evidence is sustained." The court then requested the defendants to prepare a written motion for a directed verdict, which they did and the jury returned into court the following verdict:
"At the direction of the court, we the jury, find the issues herein in favor of the defendants and against the plaintiff."
This action was brought by plaintiff, a corporation, to recover the balance due on an account for goods and merchandise sold to one, John Baker, under a contract between plaintiff and the said John Baker and the defendants, Louis Wilkerson, J. L. Lankford and T. J. Sanders, who were guarantors of said account.
At the time of the institution of this suit the old Code was in effect and Section 954, R.S.Mo. 1939, Mo.R.S.A. § 954, provided: "It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but if they be not set forth, he shall attach to his pleading, referring to it therein, a copy of the account, which shall be a part of the record; but if they be not set forth in or attached to said pleading, he shall be precluded from giving evidence thereof."
It was under this statute that defendants made their objection to the introduction of evidence on the part of plaintiff to establish its claim.
We shall refer in this opinion to the appellant as plaintiff and to the respondents as defendants, the same position they occupied in the lower court.
Plaintiff's first assignment of error is that the suit against the guarantors is not an action on an account and, therefore, the attaching of an itemized statement of the account was unnecessary. We disagree with this contention. The action was to charge the principal and the guarantors under a contract, in writing, for the balance due on an account. Before plaintiff could recover, it must establish the amount due under the account and, therefore, under the old code should have filed an itemized statement of the account, showing the balance due, and produced evidence to sustain such account.
Plaintiff's second allegation of error is that the statement filed states the account with sufficient definiteness to preclude a subsequent action thereon. Therefore, the court erred in sustaining objection to plaintiff's evidence.
We think that this allegation of error, together with plaintiff's allegation of error under heading III, to-wit, "If a copy of the account was required, and if the itemized account filed was insufficient, the trial court should have permitted the plaintiff to file the itemized statement contained in exhibits attached to and a part of plaintiff's depositions, as plaintiff offered to do", may be considered together.
We disagree with defendants' contention that, because an itemized statement of the account was not filed with the petition or the items pleaded in the petition, the petition failed to state a cause of action and could not be amended.
It was clearly held in Merkle v. Powe, 165 Mo.App. 402, 147 S.W. 1104, that the petition could be amended. This case is almost exactly like the one at bar, excepting that it was tried before the court, the jury having been waived. We quote from, 147 S.W. at page 1105 of the opinion:
"At the beginning of the trial and as soon as the first witness was placed upon the stand, defendant objected to the introduction of any testimony in the case on the ground that this is a suit upon account and that plaintiffs, as assignees, stand simply in the shoes of the original creditor, if there was one, and are subject to conform in the same way with the rule and the statute in regard to pleadings, and that this being a suit on an account, and plaintiffs, not having set out the items of the account in the petition, should have attached to their petition a copy of the account, * * *."
This is exactly the same question as is presented to us in the case at bar. In the case just quoted from the statement filed with the petition merely showed 27,299 feet of cypress lumber charged at $836.96 and another statement for 38,000 feet of poplar lumber charged at $970.57, each dated December 20, 1909. The only other items in the account, beyond the number of feet and character of the lumber, were the figures showing the dimensions of the lumber and the initials of the cars in which it had been loaded. The court then stated:
"* * * When the objection was made to the reception of any evidence because of the absence of an itemized account from the petition, or of the account being attached as exhibits, and it was shown that these originals were attached to the depositions, the court gave plaintiffs' counsel leave to file copies of these accounts instanter attaching them to the petition. This appears to have been done, or treated as done, and defendant's motion was overruled. Whereupon defendant, excepting, then objected to the reception of any evidence because the petition, as he claimed did not state facts sufficient to constitute a cause of action * *."
The court, then made the following statement of law, in passing upon the action of the trial court:
"It is argued by the learned counsel for appellant, that the court committed error in allowing the amendment to the petition by attaching to it the accounts above referred to, and that the petition as amended introduced an additional cause of action. As to the first proposition, it has been held in many cases that when objection is made to the introduction of evidence on the ground stated, that it is proper for the court to allow amendment, either by amending the petition itself or attaching exhibits, as see Mangelsdorf Bros. Co. v. Harnden Seed Co., 132 Mo.App. 507, 112 S.W. 15. When the copies of the accounts were filed, it was within the right of defendant to have claimed a continuance. * * *
"We are unable to see that the amendment introduced an additional cause of action."
In the case at bar we hold that the trial court clearly erred in refusing to permit plaintiff to file an itemized statement of the account on the ground that the amendment was offered after the swearing of the jury. It will be noted that the objection was not as to the form of the offering of the amendment but the objection to the trial court was that the plaintiff could not amend his petition after the jury was sworn because the petition did not state a cause of action.
The petition does state a cause of action and is subject to amendment. There is no question but what the itemized statement filed was sufficient after judgment for the reason that the very purpose of the statutes was served by the filing of this statement in that it would preclude plaintiff from bringing another action against defendants on the same cause.
We cannot agree with plaintiff's complaint set out in error No. IV. We think that where an itemized statement filed with the petition, showing the account, was insufficient to comply with the statute that the defendants could have filed a motion to make more definite and certain or they could have objected to the introduction of evidence as they did in this case.
Judgment reversed.
VANDEVENTER, P. J., and BLAIR, J., concur.