Burger v. Burger , 34 Mo. App. 153 ( 1889 )

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiff brought this action on an account stated, and recovered-judgment in the trial court. The defendant’s answer denies that an account was ever stated between himself and the plaintiff. There was evidence tending to show that the parties had a settlement of their mutual accounts, resulting in an ascertained balance due from the defendant to plaintiff, to which both assented and which the defendant agreed to pay.

The only complaint made by the defendant on this appeal, is that the court gave an erroneous instruction on béhalf of plaintiff.

The instruction complained of is as follows:

“The court instructs the jury that, if you shall believe from the evidence that the plaintiff was in the employ of defendant from the first day- of April, 1884, until about the fourteenth day of February, 1887, and that during that time there were mutual accounts between them, and if you shall further find from the evidence that there was a settlement had between said plaintiff and defendant on the fourteenth day of February, 1887, of their said accounts and a balance found due said plaintiff, as set out in the petition, and if you shall further find that defendant agreed and assented to the settlement and amount found to be due plaintiff, then your verdict should be for the plaintiff in the sum so found to be due, less the amount paid to plaintiff by defendant on account of said settlement.”

Whether upon a given state of facts, the transac-. tion amounts to an account stated, is a question of law. Powell v. Railroad, 65 Mo. 658. If the jury found the facts as stated in the foregoing instruction, then in legal contemplation there was an account stated between the parties. Upon proof of the settlement the law implied a promise to pay the balance due. Koegel v. Givens, 79 Mo. 77, 80. It is not apparent, thérefore, wherein, as defendant now claims, this instruction was prejudicial to him, in omitting the requirement of a promise to pay.

• The court upon defendant’s request instructed the jury:

“ The plaintiff in this case sues the defendant on a settlement which plaintiff alleges in his petition was made between the plaintiff and defendant on the fourteenth day of February, 1887, by which plaintiff claims that a balance was found to be due to plaintiff of the sum of $676.55. In order for you to find for plaintiff in any sum, you must believe from the évidence that such a settlement took place and that there was found to be due the plaintiff the sum sued for, and that defendant agreed and promised to pay the same to plaintiff. And the burden of proof rests on the plaintiff to show these facts to your satisfaction.”

It will be thus seen that even if we concede for the sake of argument, that there is some merit in defendant’s objection to plaintiff’s instruction standing alone, the instructions taken together submitted the case fully and fairly to the jury, even on defendant’s theory of the law. This being the case, no warrant exists for disturbing the verdict. Reilly v. Railroad, 94 Mo. 611.

Judgment affirmed.

All concur.