Whitewater Mercantile Co. v. Devore

109 S.W. 808, 130 Mo. App. 339, 1908 Mo. App. LEXIS 237

• Court: Missouri Court of Appeals
• Decided: April 14, 1908
• Status: Published

Opinions

NORTONI, J.

I cannot agree with all Judge Bland says in tbe Opinion. It is true the' account itself is somewhat meagre. It is accompanied, however, by a petition in the usual form in actions of this nature. The account is annexed to this petition as parcel thereof and the two must he considered together. I am willing to concede that, had this pleading, petition and account been properly assailed by motion in the circuit court, it would have been proper to adjudge them insufficient for the reason they failed to inform the defendant of the specific items for which he was sued; and for the further reason it did not appear in what years the items of account were contracted. The defendant answered " over, however, and. in Ms answer expressly admitted tbe running of a mutual account at tbe time stated by tbe plaintiff, pleaded numerous credits during tbe years 1904-1905, etc., and thereby, under tbe doctrine of express aider, when considered from tbe present standpoint after judgment, supplied tbe deficiency of tbe plaintiff’s statement as to tbe years in wbicb tbe items of indebtedness were contracted. Now tbe account thus aided by tbe answer shows it to bare been for merchandise sold to tbe defendant and in every instance tbe name of tbe party purchasing for defendant is given. Tbe name of tbe party who made tbe purchase for defendant is set opposite each purchase throughout tbe entire account, as it appears before us, and it served to notify tbe defendant to some extent with respect to the transactions. This, however, is of no importance after judgment. It might have been matter for consideration in tbe trial court bad defendant moved to make tbe account more definite. In this respect, it seems tbe presiding judge treats the matter as having been assailed before judgment and deals with questions which would be entirely pertinent were that true; whereas tbe assault on tbe sufficiency of tbe statement is not made until after tbe entire merits of tbe controversy, including tbe sufficiency of notice to defendant conveyed by tbe account rendered, is merged in tbe judgment. Under such circumstances, when tbe sufficiency of tbe statement is first questioned after judgment, it is the familiar rule that all intendments must go in aid of tbe pleading, and it shall be declared insufficient only in those cases where it is so indefinite as to fail to bar another action for tbe same subject-matter. Under tbe rule thus given, Ave ascertain tbe account stated is for merchandise sold during tbe years admitted in the answer and on tbe specific dates and days of tbe month of each purchase, with tbe amount of each purchase. Tbe petition to which this account is annexed, alleges tbe account to have been for “goods, wares and merchandise.” This allegation is broad enough to cover and include, and does include, every and all kinds of goods, wares and merchandise, and so it is sufficient to preclude another suit between the same parties-for either goods,- wares or merchandise. That is to say, if the plaintiff were to sue the defendant a second time on account of the same dates for any sort of goods, wares or merchandise, the judgment given upon the pleadings in the present action can be successfully pleaded in bar thereof. Under the rule stated, the petition and account, when aided by the answer, is certainly sufficient to support the judgment.

In the Vogelsang case, 117 Mo. App. 148, 149, 93 S. W. 326, cited in the opinion, the account was much more indefinite than the one now under consideration for the reason that although it stated the year to be 1903, no days of the month whatever were indicated when the alleged merchandise was purchased. It was not aided by defendant’s answer nor was it accompanied by a petition, as in the case at bar. That case originated before a justice. There was no other statement of the cause of action than the defective account set out in the opinion. When the petition, account and answer are all considered together in this case, there appears a substantial compliance with the statute, at least.' In such circumstances, it is the rule, after judgment, although the account is defective in not setting forth the items with a proper degree of certainty, the matter will be regarded as cured by the defendant’s waiver, which results from his participating in the trial on its merits, as was done in this case, without properly directing the attention of the trial court to the insufficiency of the statement. [Meyer v. Chambers, 68 Mo. 626; Harford v. Boyes, 56 Mo. App. 139.]

Judge Goode concurring, the' judgment will be affirmed. It is so ordered.