Andrews v. W. R. Stubbs Contracting Co.

ELLISON, J. This is an action on an account for oats sold by the plaintiff to the defendant. At the close of plaintiff’s case the trial court sustained a demurrer' [601] to the evidence, and judgment was rendered for defendant. It appears that defendant bought of plaintiff, delivered at different times, a number of ear loads of oats. The price of oats advanced fifteen cents per bushel and defendant asserted that thereafter plaintiff delivered seven car loads which were short the number of bushels they should have contained. Plaintiff sent to defendant a statement of his account showing balance due of $7,360.80. Defendant thereupon deducted therefrom the sum of $632.70 and enclosed to plaintiff a check for $6,728.10, with a letter stating that that sum was the “balance in full of account as per attached statements. ’ ’ The letter informed plaintiff that defendants had deducted $632.70 from the account which he had rendered, giving as a reason for such deduction, the shortage aforesaid, which, at fifteen cents per bushel, made the amount deducted. Plaintiff received the check and drew the money thereon. Prom the foregoing it is apparent that the trial court’s action in sustaining the demurrer to the evidence for plaintiff was correct. Defendants’ claim of damages to be deducted from the amount of-the account claimed by plaintiff made it a disputed account. Pollman Coal Co. v. St. Louis, 145 Mo. 651. And when defendant inclosed its cheek as balance in full, accompanied by a statement showing such to be a balance in full, as explained in such statement, and plaintiff accepted such check, drawing the money thereon, he thereby accepted the condition of its being in full settlement and discharge of the account. St. Joseph School Board v. Hull, 72 Mo. App. 403, and cases cited; and such was declared to be the law by Judge Gantt in Pullman Coal Co. v. St. Louis, supra. The judgment is affirmed. All concur.