Chillicothe Savings Ass'n v. Morris , 52 Mo. App. 612 ( 1893 )

Gtll, J.

This is an action on a bank account, alleged to have accrued during the years 1889 and 1890, wherein a balance is claimed of $1,561. The petition charges defendant as one of the partnership of McCormick & Morris, and the amount sued for is alleged to be on account of moneys overdrawn during said years 1889 and 1890 — “an itemized statement whereof” was alleged as attached to the petition and made a part thereof. But no itemized account was attached.

The defendant filed several different pleadings, some of which we deem it unnecessary to notice. It is sufficient to say, however, that on October 7, 1891, defendant filed a demurrer to the petition specifically complaining: “ Second. That said petition fails íb set out the items of the account upon which the suit and demand is founded, and does not have attached to or filed with the petition an itemized account of their demand.” This was on plaintiff’s motion stricken out. Thereupon on the same day defendant moved the court to require plaintiff to make its petition more definite and certain in this, to-wit: “That it set forth in its petition the items of the account therein alleged and sued on, or attached to said petition, referring to it therein, a copy of the account therein alleged and sued on, and upon failure so to do to dismiss said petition.” The court overruled this motion; defendant refused to further appear or plead in the cause, and, thereupon, judgment was entered in plaintiff’s favor, and defendant appealed.

That this is an action on an account — the items of which should have been set out in the petition, or incorporated in an itemized statement of account annexed to and filed therewith,1 as required by section 2075 of our code of practice — is too plain for argument. The plaintiff’s petition was then clearly defective, in that it failed to contain a statement of the items going to make up the alleged cause of action, or, in lieu thereof, to have attached and filed therewith a copy of such itemized account.

The defendant attempted in eveiy way known to our practice to have this defect properly cured, or if not to have the case dismissed; but the court erroneously denied any relief. The wisdom of this statute, which requires such an itemized statement of account, is here most manifest.' If this $1,500 balance of account results from the various transactions of the firm of McCormick & Morris (of which defendant was a member) covering a period of two years as alleged, the defendant should be informed of the different items that go to make it up, so that he may determine whether or not he has any good defense to any part of the amount claimed.

The court committed error to the prejudice of the defendant; and its judgment will be reversed and the cause remanded, with directions to sustain the defendant’s motion to require plaintiff to make its petition more definite and certain.

The other judges concur.