Stewart v. St. Louis & Suburban Railway Co.

1. ACCOUNT STATED: Assent to Correctness of Account Essential: Promise to Pay: Implied Promise. In order to constitute an account stated, there must be assent to the account as correctly setting out the amount due from the one party to the other; and a promise to pay such account, express or implied, is necessary, but when the account is assented to as correct, the law, in the absence of evidence to the contrary, implies a promise to pay. 2. -: -: -: -. A promise to pay cannot be implied, in the face of a direct and positive refusal to pay ahd a denial on the part of the debtor that he owes the balance claimed to be due, as shown in the account exhibited to him. 3. -: -: -: -: Sufficiency of Evidence. In an action on an account stated, evidence that, on plaintiff’s exhibiting the account to defendant, the latter, while admitting the correctness of the items, denied owing any indebtedness to plaintiff, claiming that, under a certain contract between plaintiff and defendant, plaintiff had insured defendant against loss for any accident that might occur in doing the work out of which the account arose, and that a workman had received an injury in doing such work and had brought suit against defendant, and that defendant refused to pay 'the balance claimed by plaintiff as due, unless plaintiff would take care of such workman’s claim, was insufficient to establish an account stated, there being no promise to pay, direct or implied. 4. APPELLATE PRACTICE: Theory at Trial. The appellate court will dispose of a case on the theory on which it was tried below; so that, in an action on an account stated, where it was not proved that the account had been stated, a verdict for plaintiff will not be sustained or the' theory he established his right to recover on a quantum meruit and that the verdict, thereioie, was for the right party.

Appeal from St. Louis City Circuit Court. — Eon. George E. Williams} Judge. (1) Where the verdict and judgment were for the right party and no prejudicial error was committed, it is the duty of the appellate court to reverse the order of the trial court granting a new trial. 'Orawford v. Stock Yards, 215 Mo. 394; Simonton v. Transit Co., 207 Mo. 718; Deschner v. Railroad, 200 Mo. 310; Schmidt v. Railroad, 163 Mo. 645; Richardson v. Drug Co., 92 Mo. App. 516; Campbell v. Railroad, 86 Mo. App. 67; Lumber Co. v. Christophel, 59 Mo. App. 80. (2) Where, parties meet and go over their accounts and strike a balance in favor of one of them, to which the other assents as correct, this is sufficient to establish an “account stated.” Rambrick v. Simms, 102 Mo. ■ 162; Koegel v. Givens, 79 Mo. 78; Powell v. Railroad, 65 Mo. 661; Railroad Co. v. Kimmel, 58 Mo. 84; Kronenberger v. Binz, 56 Mo. 121; Fisse v. Blanke, 127 Mo. App. 422; Investment Co. v. Bank, 96 Mo. App. 125; Mulford v. Caesar, 53 Mo. App. 263; Burger v. Burger, 34 Mo. App. -153; Hawkins & Co. v. Long, 74 N. O. 781; Watkins v. Ford, 69 Mich. 357; Graham v. Chubb, 39 Mich. 417; Hendricks v. Kirkpatrick, 67 N. W. 759; Clark v. Kelsey, 41 Neb. 766; Claire v. Claire, 10 Neb. 54; Tuggles v. Minor, 76 Cal. 96; Auzerias v. Naglee, 74 Cal. 60; Brewing Co. v. Hunstock, 77 Miss. 493; McCall v. Nave, 52 Miss. 494; Stebbins v. Niles, 25 Miss. 267; James v. Fellows, 20 La. Annual 116; Barboury Oo. v. Foundry Co., 99 Ala. 47; Ware v. Manning, 86 Ala. 238; Burns v. Campbell, 71 Ala. 271; Concord Apt. House Co. v. Refrigerator Co., 78 111. App. 683; Lane & Bodley Co. v. Taylor, 97 S. W. 441; Weed v. Dyer, 53 Ark. 155; Railroad Co. v. Camden, 47 Ark. 541; Lawrence v. Ellsworth, ^ 41 Ark. 507; Rand v. Whipple, 75 N. Y. Sup. 745; Robbins v. Downy, 18 N. Y. Sup. 100; Weigel v. Steel Co., 51 N. J. Law 446; Cochrane v. Allen, 58 N. H. 250; McClellan v. Crofton, 6 Me. 307; Toland v. Sprague,, 12 Pet. 333; Oil Co. y. VanEtten, 107 U. S. 334; Wiggins v. Burkham, 10 Wall, 129; Volkening y. DeGraff, 81 N. Y. 268; Normandin v. Grator, 12 Ore. 505; Hooker v. Owens, 17 Ore. 523; Holmes y. Page, 19 Ore. 232; Voight y. Brooks, 19 Mont. 375; Trueman y. Hurst, 1 T. E. 42. (3) To constitute an account stated does not require an express promise on the part of the debtor to pay the balance found against him. The law conclusively presumes a promise to pay such balance. Barn-brick y. Simms, 102 Mo. 162; Koegel v. Givens, 79 Mo. 78; Burger v. Burger, 34 Mo. App. 153; Watkins v. Ford, 69 Mich. 357; Hendricks v. Kirkpatrick, 67 N. W. 759; Claire v. Claire, 10 Neb. 54; Concord Apartment House y. Eefrigerator Co., 78 111. App. 683; Lane & Bodley Co. y. Taylor, 97 S., W. 441; Lawrence v. Ells-worth, 41 Ark. 507; Band y. Whipple, 75 N. Y. Supp. 745; Bobbins v. Downy, 18 N. Y. Sup. 100; Cochrane v. Allen, 58 N. H. 250; Toland y. Sprague, 12 Pet. 333; Wiggins v. Burkham, 10 Wall. 129; Chace y. Trafford, 116 Mass. 529.; Jaques y. Hulit, 16 N. J. Law, 38; Heinrich v. Englund, 34 Minn. 395; Voight v. Brooks, 19' Mont. 375; 1 Am. and Eng. Ency. of Law (1 Ed.), 110; 1 Cyc. 372; also 689-690; 2 Greenleaf on Ev. (9 Ed.), sec. 127, p. 129. (4) The pleadings and evidence justify the verdict and judgment on the theory of an action on a quantum meruit. Jordan y. Transit Co., 202 Mo. 426; Schaefer v. Green, 68 Mo. App. 172; Legg y. Girardi, 22 Mo. App. 149:; Besson & Co. v. Goodman, 147 Fed. 887; Beers v. Kuehn, 84 Wis. 33-34. (1) The trial court’s action in sustaining defendant’s motion for a new trial was right, because the evidence fails to show an account stated in that: (a) There was no balance struck, (b) That there was no admission on behalf of defendant, either express or implied, that there was a balance due and owing plaintiff, (c) That there was no promise by defendant, either express or implied, to pay plaintiff a balance found due and owing, (cl) The evidence shows affirmatively that defendant steadfastly and persistently, from beginning to end, denied that there was a balance due and owing plaintiffs and continually refused to pay plaintiffs. State v. Hartman, 20 Atl. 67, 51 N. J. L. 446; Harris v. Woodard, 40 Mich. 408; Ryan v. Gross, 48 Ala. 370; Railroad v. Kimball, 58 Mo. 83; Harley v. Goodfellow, 12 New Brunswick Reports (1 Hannay), 335; Evans v. Verity, Ryan & Moody Reports, 259; Reinhardt v. Hines, 51 Miss. 1. c. 347; Hall v. Morrison, 3 Bosworth Reports N. Y. 527 ;• Calvert v. Baker, 4 Meson & Welsby Reports, 416. (2) Plaintiff now contends that the verdict may stand on the theory that the petition states a cause of action for quantum meruit. This cannot be maintained, because — -(a) The petition does not state any such cause of action, (b) If it did then there is no evidence to support such a claim, (c) Plaintiff tried the case below upon the theory of a fact stated and he is bound by it now. State v. Hartman Steel Co., 20 Atl. 67. Statement. — Plaintiffs by their petition, after averring the character of the parties, “for their cause of action aver that at the instance and request of defendant, they furnished during the year 1904 and 1905, certain labor and material for the doing of certain alterations and additions to defendant’s premises situated at DeHodiamont, in the city of St. Louis, and state of Missouri, the particulars of which will appear by an ‘Account A,’ herewith filed, and that the total amount of the labor and material so furnished by plaintiffs was of the fair and reasonable value of $46,159.05; that the defendant furnished to plaintiffs certain material and did certain work and made certain payments on account, for which defendant is entitled to a credit of $41,551.43, a balance due and unpaid of $4607.62, the particulars of all of which will appear by account ‘A’ herewith filed; that thereafter, to-wit, on the 18th day of September, 1905, plaintiffs and defendant had ah accounting as to all work and labor furnished and-done, as set forth in said account ‘A/ and as t-o all payments and credits to which defendant was entitled upon said accounting, and that then and there a balance was struck between plaintiffs'and defendant, and it was then and there agreed that there was still due and unpaid to plaintiffs on account of said labor and material, the sum of $4607.62, and then and there said sum of $4607.62 became an account stated between plaintiffs and said defendant in regard to all the matters set forth in said account ‘A’ and the said defendant then and there agreed to pay plaintiffs said balance within a reasonable time, but defendant has wholly failed and neglected to pay said balance or any part thereof. Wherefore plaintiffs demand judgment against said defendant,” in the sum' named with interest thereon since September 18, 1905, and for costs. Attached to the petition is the account referred to as Exhibit “A,” consisting of many items, debit and 'credit, the last credit item being dated September 18, 1905, a cash credit of $2500. The ansAver is a general denial. A trial was. had before the court and a jury, plaintiffs’ evidence consisting of the account attached to the petition and oral testimony of Mr. Lohmann, manager for plaintiffs, and of Mr. Taylor, attorney for plaintiffs, Mr. Lohmann testified that the work under the contract which plaintiffs had with defendant was completed sometime prior to September 18, 1905; that after it was completed he attended a meeting, at which meeting were present the witness and Mr. Taylor, the attorney for plaintiffs, and Mr. Walsh, representing defendant, together with Mr. Chandler, one of defendant’s attorneys, and the original of the account Exhibit “A” Avas taken up, the original being the same as Exhibit “A,” except that the credit of $2500 cash, credited September 18th, had not then been entered on the account. Mr. Lohmann testified that they had the meeting to make a demand for the payment of the money due them or to file a mechanic’s lien on the property, and he also testified that the amount stated as the balance was. correct. Asked what the representatives of defendant said at that meeting, he answered, “They refused to pay the account on account of a clause in the contract. . . . Their reason for refusing to pay the account was — their claiming that we were responsible for the accident, in accordance with a clause in the contract.” He further testified that at that meeting they did not go over the items because that had been done at prior meetings with their engineer, with Mr. Walsh and others, Mr. Walsh being the vice-president or manager of defendant. At the prior meetings the balance struck was $7101.62, in accordance with the statement submitted at that meeting, and was correct and there was no objection to it. The witness continued: “After the conference — at the conference, rather, it was agreed to make us a payment on account of $2500, which amount we were to have deducted from the original statement submitted; leaving a balance of $4607.62.” On cross-examination, Mr. Lohmann was asked if at that meeting Mr. Chandler, one of the attorneys for defendant, and Mr. Walsh, representing defendant, had not absolutely refused to pay anything because they said that plaintiffs were not living up to their contract on account of an injury to an employee sustained at the buildings. Witness answered: “I said they refused to pay us on account of a clause in the contract concerning accidents; yes.” Asked if they (defendant’s representatives) had not not said that they refused to pay this amount stated here (in the account), witness answered, “They did not dispute the amount but refused to pay it.” That they had refused to pay it on the ground that they had a contract with defendant under which plaintiffs had assumed all the risk of accident which might occur of somebody getting hurt as the result of their operations and for any judgments arising in the construction of the coal bins and other improvements on the property. . Asked by counsel, “So they continually refused to pay this claim on that ground,” witness answered: “But they did pay us $2500 after that meeting, on account.” Witness was then asked, “And at the same time, while they refused to pay you any part of this money — the defendant refused to pay you any part of this money on the grounds I- have stated, at the same time they paid you $2500?” To which he answered, “Exactly. .Their first position was that they refused to pay us anything on account, but after discussing the matter awhile, they agreed to pay us $2500, which they did pay ns on account.” Asked if they had ever agreed to pay the $4607 balance, witness answered, “They never refused to pay us.” Asked if they did not refuse to pay it, witness answered, “That end was left open until — .” Witness was again asked if he meant to say that at that meeting defendant agreed to pay plaintiffs $2500. He answered, “Yes, sir.” We quote the remainder of his testimony under cross-examination as set out in the abstract. . • “Q. But said that they would refuse to pay the $4607, because they agreed that the bond that you had given in the case would meet their requirements in case they were held liable for the demands of this man Clark (the man who had been injured), for the balance of the damage? A. We never made any agreement about that man or the balance of damage. Q. Or the balance of damage? A. No, sir. Q. But they did refuse to pay the $4600? A. At that time they did; yes, sir; that is true. Q. At that time they refused to pay the $4600? A. Yes, sir; and they refused to do so, refused to pay it ever since then. Q. And have refused to pay it ever since? A. Yes, sir. Q. Now, there can’t be any mistake about that? A. There can’t be any mistake about that.” Mr. Taylor, examined on part of plaintiffs, testified-that acting as attorney for plaintiffs, fie went to tfie office of Mr. Cfiandler, one of tfie attorneys for defendant, on two occasions. On one of tfiese occasions, Mr. Pierce, another of tfie attorneys for defendant, was also present, along with Mr. Cfiandler and himself. Asked what was said and done at tfiese meetings, Mr. Taylor answered tfiat the'items Of debit and credit were all gone over and “a bit later” plaintiffs agreed to accept tfie $2500. It was stated by Mr. Cfiandler and by Mr. Pierce tfiat tfie amount of tfie items was not in dispute but both these gentlemen contended at tfie time tfiat tfiey ought not pay tfiis sum, tfie balance claimed on tfie account, on tfie ground of a clause which was contained in tfie building contract between plaintiffs and defendant in regard to plaintiffs assuming certain risks. Witness contended in tfiese meetings tfiat tfiat clause fiad fio application to tfie injuries tfiat had happened to Clark, stating why fie thought so. Tfie representatives of defendant contended to tfie contrary. Tfiey had quite a discussion along tfiat line and tfie matter was left open. At tfie time of tfie meeting, tfie time had nearly expired for filing a mechanic’s lien and plaintiffs were threatening to file one and advised defendant’s representatives of their intention to do that. Within a day or two after tfiis first meeting witness and Mr. Lofimann, representing plaintiffs, and Mr. Cfiandler and Mr. Walsh, the latter representing defendant as its general manager, met at Mr. Chandler’s office. Mr. Taylor, tfie witness, asked particularly whether there was any objection to tfie items of tfie account. Mr. Walsh said, “Notfiat tfie items were all right, “and tfie only excuse we have for not paying it is that we think it oughtn’t to be paid until tfie matter of Clark’s suit was settled.” Mr. Taylor said in response to tfiis tfiat tfiis was no excuse for not paying tfie amount, because under fiis view there was no liability on tfie part of fiis client for negligence in tfie matter of tfie claim, of Clark. Finally Mr. Walsh proposed to pay $2500 on the account and not have them file the mechanic’s lien. Thereupon he did pay the $2500, leaving the balance of $4607.62. To quote Mr. Taylor: “It is true that Mr. Walsh said there and then that he didn’t think he ought to pay anything on the $7107.62 until the Clark matter was disposed of ; . . . that the Union Iron & Foundry Company was to share a part of the sum necessary to make a .settlement with Mr. Clark, and that the Suburban Railway Company was to share or contribute a sum to settle with Clark, and that we (plaintiffs) should share or contribute a sum, dividing it into thirds. That they proposed thus to settle with Clark. I said, ‘We are absolutely not liable for a cent, and we will not contribute a cent; and I then told Mr. Walsh that unless something was paid on account of this balance, which was conceded to be due us, providing we were not liable under that construction contract, we would file the lien; and he said he would pay $2500 and reserve the $4607.62. I said, ‘Well, I will let the balance stand until after the Clark ca.se is tried in the circuit court, but not a day longer.’ That then, after that, I wouldn’t be willing to leave it lay any longer. ... I said, ‘if you pay us $2500 on account, that will enable us to settle with the Union Iron & Foundry Company, because they also have a claim against us, and if you pay that amount we can settle with them, and the balance which yon concede to be due on this account stated, we will postpone until after the trial of the Clark case, hut if judgment goes against you in the Clark case on the trial had in the circuit court, I will not postpone bringing this suit of ours after the Clark case has been tried in the circuit court.’ The $2500 were paid.” The first conversation that witness gave, he said, occurred on the 17th between himself and Mr. Chandler and Mr. Pierce. Mr. Walsh was not then present. It was arranged that they were to see Mr. Walsh and they saw him the next day or a day or two afterwards, and on that day the $2500 were paid. On cross-examination Mr. Taylor testified that when Mr. Walsh was present and they took up the matter, which was on the day following his conversation with the attorneys, Mr. Walsh stated that he thought the balance, $7107.62, ought to be retained. Witness insisted that he would file the lien unless defendant paid all or at least part of it, whereupon Mr. Walsh said he would pay $2500 and witness said he would allow the remaining part of the account to remain open and not bring suit until the Clark case had been tried in the circuit court. Asked if at the conversation of September 18th, Mr. Walsh and the counsel who represented defendant took the stand that they would pay no part of the $4600 and told him that if he wanted to test the matter to bring suit and they would defend the suit and have the matter determined, witness stated that no such conversation had iaken place at the meeting of the 18th; that that statement was made by counsel in a talk witness had with them before he saw Mr. Walsh. The position of counsel was, they would not pay anything on account at all but when they met with Mr. Walsh it was agreed that there was money enough available to pay the $2500 on account but he (Mr. Walsh) insisted on witholding the remainder of the account to' cover the supposed obligation under the bond and in settlement of the Clark claim. Witness then went on to explain why he was willing to delay suit, one of the reasons being that if they could get any payment on account to bring it down within the jurisdiction of the St. Louis Court of Appeals, they could get speedier action on the case than if it was obliged to go to the Supreme Court, the jurisdiction of the court of appeals at that time being $4500. Asked if he intended remitting the difference between $4500 and the $4607.62, and if he would waive the interest, witness answered that he would have waived any interest rather than have delay. He was then asked this question: “You wouldn’t do that if you brought this action on an account stated, because it was over the construction of that clause regarding assuming risk under the contract?” To which he answered,-‘‘No, not at all; it would have nothing on earth to do with it. On an account stated it would not involve any consideration there. Because, in the other, I would have set up all of the items of debit and credit; that is, each item involved in the account going to make up tlie whole total, and that would involve a great deal of detail. But on an account stated, you get it as the stated balance that is conceded to be due.” On further cross-examination on matters not now necessary to notice, principally going to the witness’s reasons why he considered his client not liable to contribute to any damages recovered for the Clark injury, this witness concluded, his testimony and plaintiffs rested. We have, as we think, given substantially all the testimony on the part of plaintiffs, important in determining the fact of an account stated. Thereupon defendant prayed the court to instruct the jury that under the law and the evidence their verdict must be for defendant. This was refused, defend-amt duly excepting. As to the testimony for the defense, it is sufficient to say that Mr. Walsh and Mr. Pierce, who were its only •witnesses, testified to what had taken place in these conversations between the parties. Mr. Chandler, having removed from this state, did not testify. There was practically no material difference in the version given by them and that given by the witnesses for plaintiffs. Mr. Walsh testified that while they made no objection to the various items of the account, they denied, and had in all of these' conversations denied, that they owed the balance claimed, and had refused to pay that or any part of it until a determination of the suit which Mr. Clark had brought for damages alleged to have been sustained by him. Mr. Walsh claimed that under the contract which defendant had with plaintiffs for the erection of the building, plaintiffs had insured it against loss or damage for injuries to employees engaged in the erection of the building. At no time, Mr. Walsh testified, had defendant admitted that the $4607 was a correct balance, nor at any time had they agreed to pay the balance claimed. Mr. Walsh further testified that at the interview at which he was present, there was nothing said about delaying settlement until the Clark cáse was settled; tliat while they agreed on the balance as correct, they did not consider it was due; that in accordance with the contract between plaintiffs and defendant1 it (defendant) claimed that the money was not due. Oh redirect examination Mr. Walsh repeated this, that at no time had he admitted that the amount was due; but he admitted that the account was correct as to its items; that the work had been done; but he had at all times denied and refused to admit that any balance was due. Mr. Pierce’s testimony was substantially along the line of that given by Mr. Walsh, Mr. Pierce insisting for his client that it would make no settlement until the Clark matter was adjusted between them and that un-> til that was done they could not determine what was due and he distinctly repudiated any acknowledgment of any balance in any amount being due. This is practically all the testimony in the case. At the instance of plaintiffs the court instructed the jury, in substance, that if they believed and found from the evidence that, during the years 1904 and 1905, plaintiffs furnished certain labor and material at defendant’s request for constructing certain alterations and additions to defendant’s premises arid that when the work was completed plaintiffs and defendant met on the 17th or 18th of September, 1905, for the purpose of adjusting their accounts touching the same “and after going over their mutual accounts ascertained and struck a balance showing that the plaintiffs were entitled to receive from defendant on account of said work and material the sum of $7107.62, above all payments previously made on account thereof, and that the defendant thereupon paid to the plaintiffs on September 18, 1905, the sum of $2500, and then the balance of $4607.62 became a balance due the plaintiffs from defendant upon an account stated, then the jury wall find a verdict for the plaintiffs and assess their damages at the sum of $4607.62, with the interest on such sum at six per centum per annum from September 18, 1905. And if the jury should find that the account was thus stated between plaintiffs and defendant, then the jury are further instructed that it is wholly immaterial whether there were certain other matters in controversy between the plaintiffs and defendant which were not adjusted at that time, and also immaterial whether the defendant declined to pay the plaintiffs the balance thus ascertained until a certain contingent liability of plaintiffs to defendant was first finally determined; provided the jury find further that the plaintiffs did not agree to such condition.” Defendant duly excepted to the giving of this instruction and requested the following instructions which the court refused to give: “1. The court instructs you that in this present action you are not to consider the question as to whether or not defendant received any material or labor from plaintiff company and might be indebted to it for some amount or other. The only issue before you in this case is whether or not on September 18, 1905, plaintiff and defendant had an accounting, one with the other, and if there wras a balance struck and found in favor of the plaintiff company and that defendant company promised to pay that amount.” “2. The court instructs you that if you find and believe from the evidence that plaintiffs presented to defendant an account and there was a balance struck and defendant admitted that the account shown and the balance were correct, but denied that the amount shown by the balance struck was yet due and owing, then your verdict must be for defendant.” The jury returned a verdict in favor of plaintiffs for the sum of $5838.09. In due time defendant filed a motion for a new trial, assigning ten grounds for the mo tion: first, because the verdict is against the law; second, because the verdict is against the evidence; third, because the verdict is against the law and the'evidence; fourth, because the court erred in refusing to give defendant’s peremptory instruction in the nature of a demurrer to the evidence, offered at the close of plaintiffs’ evidence in chief. The seventh assignment is to the error of the court in giving illegal instructions to the prejudice of defendant; the eighth, to error in refusing to give proper and correct instructions asked by defendant; tenth, because upon the whole case the verdict should have been for defendant. .It is unnecessary to notice the other grounds set out in the motion for new trial. After consideration of the motion, the court sustained it on the first four assignments of error. Plaintiffs excepting to this action, duly perfected appeal to this court. As in the report of the case the points made by the respective counsel will undoubtedly be set out, it is unnecessary to repeat them here.