Borkowski v. Janicke , 170 Mo. App. 610 ( 1913 )

TRIMBLE, J. —

This is a suit to recover a balance due on an account for groceries sold the defendants and used by them in their family. It originated in a justice court where judgment was rendered for plaintiff and an appeal was taken to the circuit court. Motions were there filed by defendants to make the petition more definite and certain, which being sustained, the plaintiffs, by leave of court, filed an amended petition in which they asked judgment for the same balance, as upon an account stated.

The defendants thereupon filed a joint motion to strike out the amended petition as a departure, but this the court overruled. Whereupon defendants filed a joint answer and submitted the disputed questions of fact to the arbitrament of a jury. A verdict was returned for plaintiff in the full amount claimed, to-wit, $187.75, and we are asked to review the judgment rendered thereon.

The first error complained of is that the court overruled defendant’s motion to strike out the amended petition which declared on a stated account and was for that reason a departure. It is held in Hanson v. Jones, 20 Mo. App. 595, l. c. 600, that such an amendment does not introduce a new cause of action, but that it remained as before, a suit for a balance due on a merchant’s account; and this ruling was approved in Newberger v. Frieda, 23 Mo. App. 631, l. c. 637. These rulings are based on the liberality accorded amendments to pleadings in justice courts where technical formality is not required. But whether the amendment was a departure or not, defendants waived all error in that regard by filing answer and going to trial, thereby taking their chances on the issues as presented by the amended pleading. Having taken their chances they must abide by the result so far as this point is concerned. [Scovill v. Glasner, 79 Mo. 449, l. c. 454; Grymes v. Mill Co., 111 Mo. App. 358, l. c. 362.]

A number of errors are claimed the basis of which is the assumption that the evidence fails to show an account stated against both or either of said defendants. We think it amply sufficient, however, to support a finding of the jury to that effect. There was evidence fully tending to show that, during the entire time groceries were bought of plaintiff by the defendants, the various items with the amount due therefor were set down in the shape of an account in duplicate pass books, one of which plaintiff kept and the other was retained by defendants; that the final balance now sued for was struck and put down in each pass book; that defendants retained this pass book with such balance for a year and a half without objection; that both defendants said they would pay, and one defendant (the husband) offered to give his note for it; that there was a definite acknowledgement of indebtedness in a certain sum implied from the conduct of both defendants. This was sufficient to sustain a finding that there was a stated account. [Stewart v. Railroad, 157 Mo. App. 225, l. c. 238, and authorities there cited.]

It is also insisted that it was error to submit the reasonableness of the length of time the debtors kept the account without objection, since reasonableness is a question of law for the court and not for the jury. It undoubtedly is a question for the court “where there is no dispute as to the time of the rendition of the account or the time of making objection.” McKeen v. Bank, 74 Mo. App. 281, l. c. 289.] But where there is such dispute it is proper to’ submit the question to the jury in an appropriate instruction as was done in this case.

Objection is made to the form of the verdict. It read as follows:

“Oct. 28-1912.

J. C. Borkowski v. Rudolph Janicke et al.

We, the jury in the above entitled case, find for the plaintiff and against the defendant in the sum of $187.75.

W. C. Baker, Foreman.'

The point is that by the use of the word “defendant” instead of “defendants” the jury meant to return a verdict against one and not the other and hence the verdict is faulty and ambiguous. The defendants were sned jointly and answered and defended jointly. There was no claim of nonliability on the part of one that did not apply to both. Of coarse, if the verdict is ambiguous, then it sho.uld not stand. [Newton v. Railroad, 153 S. W. 495.] But if it shows on. its face that the omission of the letter “s” at the end of the' word “defendant” is a mere misprision, and if the entire record shows that, if any verdict is rendered for plaintiff at all, it must be against both defendants, then there is.no ambiguity. [Gurley v. O’Dwyer, 61 Mo. App. 348.] The verdict shows on its face there were two defendants. To say that the use of the word “defendant” was intentional is to convict the jury of purposely returning a verdict against one only without stating the name of the one found against or the one against whom no verdict was returned. Under such circumstances the use of the singular instead of the plural could not be said to be anything other than a mere clerical error. The identical point in question was ruled adversely to the contention of defendant in Steed v. Barnhill, 71 Ala. 157; Waddingham v. Dickson, 29 Pac. 177; Cowell v. Colorado Springs Co., 3 Colo. 82; Davis v. Shuah, 36 N. E. 122. [See also 34 Cyc. 1882.]

Instruction No. 6 is complained of as inviting the jury to find against one of the defendants only. We do not think it is open to this charge. The instruction was a form of verdict and the only ground of the charge is that a blank space was left in place of writing the names of both defendants in. Prejudicial error does not appear in this, and the verdict and judgment is so clearly for the right party, that, unless error has been shown, it ought not to be disturbed. It is, therefore, affirmed.

All concur,