Missouri Pacific Railway Co. v. B. F. Coombs & Brother Commission Co. , 89 Mo. App. 182 ( 1901 )

SMITH, P. J.

This is the second time this case has been brought here by appeal. By reference to the report of ir when here on the other appeal — 71 Mo. App. 299 — we find that the evidence presented by the record now before us does not materially differ from that then before us. What was said by us as to the legal effect of the evidence in that case is as well applicable in this. After 'quite a thorough examination of the evidence in that case we reached the conclusion that the account and letter which defendant delivered to an agent of the plaintiff did not amount to an account stated within the meaning of the law, and for that reason we thought its defense to the action was not made out.

As has already been stated, the facts in that case being substantially the same as in this, the conclusions there reached must dominate the disposition of this. At the conclusion of the evidence in this case the trial court instructed the jury that there was no evidence tending to show1 a settlement and payment of the account sued on, and that, therefore, the verdict should be for the plaintiff for the amount of said account— $221.32 — less whatever amount the jury might believe from' the evidence should be made on account of overweights charged, not to exceed $21.90, etc. In view of the opinion expressed by us as to the evidence on the other appeal, we think the foregoing peremptory instruction given by the court was entirely proper.

It is true, the defendant, after the case was remanded by us to the circuit court for retrial, amended its answer to plaintiff’s statement, but we are unable to discover therefrom that it in any way changed the former status of its defense. There was, of course, no cross-demand or counterclaim thereby set up in the case, so that the question as to the statute of limitations can not arise in the case. The correctness of the plaintiff’s account was established by the concurrent evidence of both of the parties to the suit. The only question was, whether that account had been paid off and settled in the manner alleged in the defendant’s answer. Eor the reasons fully pointed out in the opinion on the other appeal, the evidence failed to show any such payment and settlement of the plaintiff’s account. The court was, therefore, bound to give the plaintiff’s said instruction.

The judgment was for the right party and must be affirmed.

All concur.