Edmonson v. Lovan Carriage & Harness Co.

NIXON, P. J.

This action was commenced before a justice of the peace by J. O. Edmonson and R. A. Young filing the following statement:

“Lovan Carriage & Harness Company, a corporation, debtor, to J. O. Edmonson and R. A. Young,

$100 balance on settlement.”

Defendánt defaulted and judgment was rendered for plaintiffs for the amount of their claim. On appeal to the circuit court defendant filed a motion praying that plaintiffs be required to make their statement more specific. Before action was taken on this motion, plaintiffs filed the following amended statement: (Caption omitted.)

“Amended Statement.

Lovan Carriage and Harness Company, a corporation, to J. O. Edmonson and R. A. Young, Dr.”

“April 8,1908, to balance agreed to be due on settle ment made between the parties, for goods sold and de livered, $289.25 April 8, 1908, by cash by Ollie

McCutcheon ................ $ 67.50

May, 1908, by cash by Ollie Mc-Cutcheon ................... 60.00

May, 1908, by cash by Ollie Mc-Cutcheon ................... 60.00

$187.50

Balance Due.........................$101.75”

Judgment was rendered for plaintiffs for one hundred dollars, the court hearing the case by consent of parties without a jury. Defendant has appealed.

I. Appellant contends that respondents’ statement does not contain facts sufficient to constitute a cause of action in that the items of account are insufficient to inform the appellant of what the indebtedness consists. This is essentially an action on an account stated, not for goods sold and delivered. [Koegel v. Givens, 79 Mo. 78.]

It has been held that the petition must state the defendant’s promise to pay the balance found against him. [Cape Girardeau & State Line R. Co. v. Kimmel, 58 Mo. 85.] Had this cause originated in the circuit court and such allegation been wanting in the petition, upon proper objection made before trial, the trial court would have erred in overruling the objection. But, as said in the case of Koegel v. Givens, supra, l. c. 80, where the same question was under consideration, “The case having originated in the justice’s court, no detailed statement of the cause of action was essential.”

II. The parties plaintiff were J. O. Edmonson and R. A. Young. Appellant contends that as the evidence shows that transactions to have been with R. A. Young & Company, a co-partnership, the court erred in overruling appellant’s motion to require the respondents to state whether they were a co-partnership or a corporation, to state in what capacity they sued. No motion of this kind was made in the justice’s court where the judgment was allowed to be taken by default with the same parties as plaintiffs. If, by any process of reasoning, it could be held that any error was committed by the circuit court in this regard, it was entirely harmless, because the evidence amply shows without any dispute that the firm of R. A. Young & Company was composed solely of J. O. Edmonson and R. A. Young. The statute, section 540, Revised Statutes 1899, requires that every action shall be prosecuted in the name of the real party in interest. In actions prosecuted by co-partnerships, the real parties in interest are the individuals composing the co-partnership, and the action is properly brought in their names, and not in the name of the firm. [Conrades v. Spink, 38 Mo. App. 309; Mitchell v. Railton, 45 Mo. App. 282; Orr v. How, 55 Mo. 328.]

III. It is insisted that the original cause of action was on an account stated, but that the amended statement shows an account current. The original statement was undoubtedly on an account stated, for $100. [Koegel v. Givens, 79 Mo. 78.] The amended statement shows the amount of the orignal settlement with credits, leaving a balance due on the settlement of $101.75. This embodies the same cause of action in almost the same words and is not a departure. True, it asks for $101.75 when the original statement asked only $100. It will be noticed in this connection that the judgment of the circuit court was for $100, the amount claimed in the orignal statement.

Appellant charges that respondent sued on an account stated while the evidence discloses that there were three express contracts. There is evidence tending to show certain contracts, but there is also evidence tending to show that all the dealings and transactions between the parties occurred prior to the date of the alleged settlement. Whether there was a settlement at all was a question of fact, and it has been resolved against the appellant by the trier of the facts in this case.

The further point is made that the evidence shows a prior settlement when R. A. Young & Company accepted a check from appellant for $70.71. This was one of the questions of fact, and has been determined in respondents’ favor. There being substantial evidence on both sides of the issue, we cannot interfere.

We have examined the evidence and find that, while in strong conflict, it is amply sufficient to sustain the judgment.

IY. • Appellant complains of the refusal of the court to give certain declarations of law.

The first one requested by appellant declared, among other things, that if the court found that there was a dispute between the parties as to the amount owing, and that appellant gave a check for $70.71 to R. A. Young & Company in settlement of the amount owing “and the said R. A. Young & Company received and retained the check, then the plaintiffs cannot recover.” The plaintiffs did receive and retain such a check, but they strenuously denied that it was taken in full settlement of their claim. The declaration should not have been predicated on the mere statement that defendant gave the check in settlement of the amount owing (perhaps it so understood), but should have required a finding that plaintiff received and retained the check in full settlement and satisfaction of their demand. The declaration might well have been given in the form in which it was presented, but it would not have worked a change in the result.

The third requested declaration is that if it should be found that by contract the plaintiffs sold the stock of goods in bulk, the plaintiffs could not recover. We apprehend that had there been an express contract to sell the goods in bulk, there could afterwards have been a settlement and the plaintiffs could then have sued on the account stated in the settlement in the same manner as was done in this case.

The fourth declaration requested by appellant is the offspring of appellant’s contention that since J. O. Edmonson and R. A. Young were the parties plaintiff and the proof showed the transactions in controversy with R. A. Young & Company, a co-partnership, there could be no recovery. We have already passed on this question.

Finding no substantial error in the record, the judgment is affirmed.

All concur.