Wegner v. Gray

GOODE, J. Action begun before a justice of the peace on an account for plastering and papering at No. 511 Olark avenue. The case proceeded to the circuit court where plaintiff had judgment and defendant appealed. Plaintiff is a dealer in wall paper at No. 618. South Fourth street, St. Louis, and defendant resides at No. 521 Olark avenue. He testified she sent for him about September 1,1905, and said she wanted some work done at No. 511 Olark avenue. Plaintiff went there with her and a man named Gus Sticglitz, who intended to run a restaurant in the first story of the house, No. 511. Plaintiff testified defendant showed Mm what work they (defendant and Sticglitz) wanted done. He gave her an estimate of what the work would cost, she selected the paper and made suggestions about it, and was at the building every day during the progress of the work. An attempt was made to prove the work was ordered bv Sticglitz and he was the person to whom plaintiff extended credit, afterwards charging the bill to defendant because she was financially responsible, whereas Sticglitz was not. Suffice to say as to this defense the evidence was conflicting, but' warranted a finding that the work was done by plaintiff for defendant and on her credit. The case was tried and disposed of by the court without a jury and no declarations of law were asked. It is now contended the account was insufficient under the statutes to give the court jurisdiction. [Revised [455] Statutes 1899, sec. 3852.] There is nothing in this point worthy of examination except as regards the name of the creditor in the account, which, as made out and sued on, named defendant as debtor to the American Wall Paper Company of No. 618 South Fourth street, but also had the name of Wegner above that of the company. Perhaps the account as filed before the justice had better be set forth: “W. Wegner. St. Louis, Mo., Dec. 10, 1907. Miss Stella Gray To American Wall Paper Company, Dr. 618 South Fourth Street. Kinloch, Central 4610. Terms Cash. Estimates Furnished. To plastering as per agreement at 511 Clark Ave....................$18.00 To papering 6 rooms, hall, toilet and store at 511 Clark Ave.......... 58.00 $76.00” Counsel for defendant attempts to explain the account being in the name of the American Wall Papei Company from some testimony plaintiff gave that, about three years before the trial, he had bought out a man named Woerhli; had “bought everything, accounts and all, from Woerhli.” We do not see how that circumstance explains the matter, for there is no proof Woerhli, more than Wegner, did business as the American Wall Paper Company. Moreover, plaintiff testified he was by himself when the work in controversy was done. The account describes the American Wall Paper Company as of 618 South Fourth street, which was plaintiff’s place of business; and though he did not testify he did business under the style of the American Wall Paper Company, from the form in which the account is made out, it is likely he did. The question is whether the judgment is to be reversed because of the [456] form in which the account was filed as a statement. If the sufficiency of the account had been challenged by an objection to the reception of evidence, or in any other proper mode, likely it would have been held insufficient as a statement of a cause of action, in failing to disclose a demand in favor of plaintiff. [Crescent Fire Ins. Co. v. Raddatz, 28 Mo. 210; Smith v. Zimmerman, 29 Mo. 249.] Nothing of the kind was done, but the case was tried on the single issue of whether plaintiff Wegner had extended credit to defendant or to Sticglitz. The account stared defendant in the face and the proper time to object to it was previous to or during the trial. As this was not done, we must hold the error now assigned is not well taken. The exact point was decided in New England, etc., Co. v. Brown, 59 Mo. App. 461; see, too, Trustees Warrenton v. Schowengerdt, 8 Mo. App. 571; Hammons v. Renfrow, 84 Mo. 332; Fowler & Wild v. Williams, 62 Mo. 403. The judgment is affirmed. All concur.