Gammon v. McDowell , 208 Mo. App. 616 ( 1921 )

The respondent filed in the probate court of Dallas county a claim against the estate of A. Clayton, deceased, for $304. This proceeding reached the circuit court of Dallas county where on a trial before the court without a jury the issues were found in respondent's favor and judgment rendered against appellant for the amount asked.

The account filed is as follows:

"Buffalo, Mo. July 22, 1918.

"In account to T.M. Gammon from A. Clayton, dec. estate, Dr.

"Rent from March, 1904, to June 20, 1918, making 14 years' rent at $2 per month ................... $336.00 "Credit to best of my judgment $2 per year .... 28.00 _________ 308.00 "Also making 1 pr. shoes ...................... 4.00 _________ $304.00

"Leaving a balance due T.M. Gammon to this date."

The defendant filed a motion in the circuit court to require the respondent to make his account more definite and certain which was overruled. This action of the court is assigned as error.

The motion did not specify in what particular the account should be made more specific and, from the record in this case, it does not appear that appellant could have been injured by the court's action, hence if its action was erroneous, the error was harmless.

At the trial, a receipt for certain money paid by deceased to respondent was offered by appellant. This receipt did not show on what account the money was paid but did show that the transaction was between deceased and a son of respondent as his agent. This agent was permitted over the objection of appellant to testify that the receipt was for money paid on another matter. This is assigned as error on the ground that since Clayton was dead, the agent of respondent with whom the transaction was had by deceased was disqualified by section 5410, Revised Statutes 1919, as a witness in relation to that matter. It has been held in a number of cases in this State that when one of the parties to a transaction is represented by an agent, then on the death of the other party, the agent becomes disqualified by reason of the statute from testifying in relation thereto; but the Supreme Court, by which we are bound, held otherwise in the case of Wagoner v. Binder, 187 S.W. 1128, l.c. 1151-58, and overruled the former cases which hold that under such circumstances the agent was disqualified. That case is binding on us and this point must be ruled against appellant.

Appellant asked certain witnesses to state the general reputation of deceased as to promptness in paying his debts. Objections to these questions were sustained. No statement of what the expected answers would be was made and since the questions did not in themselves indicate what the answer would be, it is impossible for this court to determine whether or not the answers, if given, would have been beneficial to appellant. Under such circumstances, the appellate court will not review the action of the trial court in sustaining the objections to the questions. [McCormick v. St. Louis, 166 Mo. 315, 338, 65 S.W. 1038; Emerson-Brantingham Imp. Co. v. Simpson, 217 S.W. 562; McFern v. Gardner, 121 Mo. App. 1, l.c. 13-14, 97 S.W. 972.]

Appellant asked an instruction to the effect that all the rent which accrued more than five years before Clayton's death was barred by the Statute of Limitation. This was refused. The contention of appellant is that the rent accrued each month and therefore a cause of action arose at the end of each month and that the accruing rent from month to month did not constitute a mutual account so that the last item would draw after it the preceding items and prevent the running of the statute. The statute section 1322, Revised Statutes 1919, is as follows: "In an action brought to recover a balance due on a mutual, open and current account where there have been reciprocal items between the parties, the cause of action shall be deemed to have accrued from the time of the last item in the account on the adverse side." The account in this case is made up from a charge of $2 per month for rent for a period of fourteen years. On this a credit is allowed of $2 per year and a further credit of $4 for making a pair of shoes. The evidence shows that the deceased ran a shoe repair shop and had been in that business for some time in the City of Buffalo before renting a room from respondent. Some fourteen years before his death, Clayton desired to move the location of his shop and rented a room from respondent and agreed to pay $2 per month therefor but there was nothing said as to how long he should retain it. The deceased therefore became a tenant from month to month and occupied the room from that time until the date of his death, fourteen years afterward. The time at which payments were made for which respondent gave credit in his account is not shown so we shall assume that none of them were made within five years prior to the death of Clayton, the tenant. We then have an open account for rent at $2 per month under a tenancy from month to month extending over a period of fourteen years with no payments of rent shown in the last five years of the period. In determining whether or not the five years Statute of Limitations, section 1367, Revised Statutes 1919, applies and bars all items accruing more than five years before the death of Clayton, we must construe this section in connection with section 1322 above cited. The great weight of authority outside of this State in construing similar statutes is to the effect that when the items are all on one side of the account, the five year statute will apply but the rule has been settled in this State that if it shall appear by the conduct of the parties while the account is accruing that the whole was to be regarded as one as in the case of a merchandise account against a customer for goods sold at different dates, the last item of the account draws all preceding items to it and none of the item are barred unless all are barred. [Chadwick v. Chadwick, 115 Mo. 581, 22 S.W. 479; Vogel v. Kennedy, 127 Mo. App. 228, 104 S.W. 1151; Bowman v. Shelton, 175 Mo. App. 696, 158 S.W. 404.]

In this case it is apparent from the conduct of the parties that they both understood that the room rented by deceased should be kept by him continuously until a different contract should be made or until the tenancy should be terminated as provided by the statute. They certainly did not contemplate that in case suit should be brought for accrued rent, a separate suit should be filed for each month's rent. We think the facts in this case bring it within the rule as promulgated by the courts in this State and hence the five year Statute of Limitations does not apply.

We have carefully examined the other errors assigned and find no reversible error therein.

Judgment affirmed. Farrington, J., and Bradley, J., concur.