Burrough v. White

Opinion by Hall, J. The appellants contend that the circuit court should have given their demurrer to the evidence, that the account sued on is only, a balance of an account, and that this case is within the rule laid down in Graves v. Pierce (53 Mo. 423); McWilliams v. Allen (45 Mo. 573), and other similar cases cited by them. We do not think that this case comes within that rule. In those cases the statement of the account was a bare statement of the [235] balance due, and nothing more. In this case the account contains an itemized' statement of each article sold, the time at which and the price for which it was sold. And besides the account gives credit for. the sum of $35.00, the amount paid thereon. The point made by the appellants that, prior to the first date on the account, the plaintiffs had sold divers articles for the appellants’ house * that appellants had paid thereon the sum of $37.00 ; that the present account is but a continuation of the former account, both accounts forming one whole, continuous,, running account, and that the account in suit is, therefore, for a balance only, not showing the whole dealings between plaintiffs and the defendants —the point, we say, is not well taken. From the evidence in this case the trial court might have well inferred that, • as to those articles sold prior to the sale of the articles enumerated in the account in suit, the plaintiff had been settled with and paid in full. Because, one of the appellants himself testified that they had paid plaintiffs the sum of $37.00 about the time the account in suit begins to run, and that in the account no credit is given for said payment. The payment of $37.00 was payment in full, to the date of such payment, otherwise the account would contain some charge on account of sales made prior to such date. But the bill of exceptions which is set out in full herein, fails to show that there was any testimony tending to show that plaintiffs, at any time, filed a lien with the clerk of the circuit court as required by law. Sections 2873 and 3176 of Revised Statutes. A compliance with the provisions of these sections of the statutes was. a condition precedent to the right of plaintiffs to maintain this action for the enforcement of the statutory lien. Patrick et al. Faulke et al., 45 Mo. 314. A failure of plaintiffs to show such a compliance on their part was fatal to their right to the- judgment against appellants, rendered herein. For this reason the judgment of the circuit court is reversed and the cause remanded. All concur.