Wonderly v. Christian , 91 Mo. App. 158 ( 1901 )

BLAND, P. J.

— The trial court did not err in overruling the defendant’s motion to strike out the whole of the reply. The reply did not admit that there had been an account stated and agreed on by respondent and Christian, and seek to avoid its effect by charging errors or omissions. On the contrary, it alleges that no such agreement had been made. This was a specific denial of the facts alleged in the answer as a bar to respondent’s cause of action. Following this denial there was a statement in the reply admitting that Christian had presented to respondent the settlement sheet read in evidence, and then proceeded to allege and point out objections and errors in said settlement sheet. This portion of the reply might have very properly been stricken out had an appropriate motion been filed for that purpose. In this state of the pléadings it was incumbent on the respondent, to entitle him to recover, to prove his account, or some part thereof, as alleged in his petition, and, after the introduction of the settlement in evidence signed by himself and Christian, it devolved on him to show by proper evidence that there was in fact no stated account between himself and Christian. To meet this requirement he relied on the initial letters “E. and O. E.” written on the margin of the settlement and explained them to mean errors and omissions excepted.

In Young v. Hill, 67 N. Y. l. c. 176, the court said: “A stipulation that the settlement of the account was subject to the correction of errors and omissions which may be hereafter found therein does not render it any the less a settled account and subject to all the rules applicable to a stated account.” In Johnson v. Curtis, 3 Bro. C. C. 266, Lord Chancellor Tiiue-low said: “The circumstance of its (a stated account) being signed with exception to errors, made no difference; that being always implied in the settlement of an account.” And in Kent v. Highleyman, 28 Mo. App. l. c. 619, this court, on the authority of the above cases, held that the letters “E. and 0. E.,” shown to mean errors and omissions excepted, did not the less constitute a stated account.

The respondent, therefore, failed to meet and overturn the plea in bar to his cause of action. The account stated is prima facie correct and is conclusive as between the parties unless some fraud, mistake or omission is shown. Respondent undertook to meet this requirement by his evidence. The contention of appellant is that, under the pleadings, respondent could not show that there were any errors or omissions in the stated account. The issue raised by the answer and reply as to the stated account was settlement or no settlement, and respondent could not at the same time, with the same breath, and by the same plea, or by his evidence, deny the settlement and surcharge and falsify it, which he was permitted to do on the trial. The settlement was, under the issues as made by the pleadings, a complete bar to respondent’s recovery on his petition, for the reason that all the matters and things for which he seeks to recover were embraced in and are concluded by the settlement.

In Courtney v. Blackwell, 150 Mo. 245, it wasLeld that a plaintiff might, by a reply, attack for fraud a receipt and settlement- that had been pleaded in bar by the defendant to her action, and no doubt this is the law in this State. In the case at bar, to have admitted the stated account and then sought to get rid of its effect by surcharging and falsifying it on account of errors and omissions, would be a departure from the scope and nature of the petition and would convert the action from a declaration on an open account to a bill in equity to open up and restate a stated account on account of mistakes, errors and omissions. That this can not be done is well settled law. State v. Grimsley, 19 Mo. 171; Mortland v. Holton et al., 44 Mo. 58; Hill v. Rich Hill Coal Mining Co., 119 Mo. l. c. 30; Stepp v. Livingston, 72 Mo. App. l. c. 179.

On the trial, respondent made no effort to prove the allegations of his petition but was, over the objection of the appellant, permitted to offer evidence tending to prove mistakes, errors and overcharges in the stated account and the jury was instructed on this theory of the case and rendered a verdict on the evidence of respondent. Hence, it clearly appears that respondent was permitted to recover on a cause of action not stated in his petition and no where stated in any of the pleadings. For this error the judgment will be reversed but not remanded, for the reason respondent’s right of action, if any he has, is in equity to open up and to have restated the settlement on account of mistakes, errors, omissions or fraud. McKeen v. Bank, 74 Mo. App. l. c. 291, and citations.

The judgment is reversed.

Judges Qoode and Barclay concur.