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Burgard v. Mascoutah Lumber Co.

MAY 6, 1955.

EMIL H. BURGARD, PLAINTIFF-APPELLANT,

v.

MASCOUTAH LUMBER COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair county; the Hon. WILLIAM G. JUERGENS, Judge, presiding. Judgment affirmed.

MR. JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.

This appeal seeks to reverse a judgment entered against the plaintiff, Emil H. Burgard, in a suit brought by him for a declaratory judgment and accounting, the judgment being in favor of the original defendant, Mascoutah Lumber Company. Several points are raised concerning practice and procedure for a declaratory judgment and other points are raised as to admissibility and weight of evidence.

The complaint alleged that the defendant had contracted to furnish building materials for thirteen houses built by plaintiff and his wife, that payments had been made on account during construction, that on completion plaintiff found he had overpaid in the sum of $375.33 but that defendant was claiming a balance due in excess of $10,500. The prayer asked for a declaratory judgment stating the account between the parties, and that an accounting be taken for that purpose. Included in the prayer was a specific request that "the balance be ascertained either due from the defendant to plaintiff or vice versa."

The defendant filed a motion to dismiss the complaint with affidavits that the parties, by their agents, had already agreed upon an account stated, showing a balance due defendant of $10,536.97. Plaintiff filed a reply with affidavits denying that plaintiff had authorized an agent to agree upon an account stated, and further denying that the supposed agent had agreed to $10,536.97 or any other amount as an agreed balance due.

Plaintiff filed a demand that "the issues made under said motion and this reply thereto be submitted to a jury for trial." This was accordingly done, and the jury found the issues for the defendant. This finding necessarily sustained the claim of an account stated for a definite amount, which was in issue. Judgment was entered on the verdict finding the issues for defendant. Thereafter, the defendant made application by petition for further relief, which recited the proceedings above outlined, and prayed that the plaintiff be ruled to show cause why judgment should not be entered against him, and that judgment be entered for the amount due.

Pursuant to rule to show cause, the plaintiff filed a reply which urged that the only relief available to defendant was to have his motion to dismiss allowed, and the suit dismissed; and that no judgment could be granted because there was no counterclaim on file. The trial court heard arguments and ruled in favor of defendant. Thereupon the judgment for $10,536.97 appealed from was entered.

Plaintiff had also filed a motion for new trial after the jury verdict, and now argues that it should have been allowed on the ground the verdict was contrary to the manifest weight of the evidence, and the court had admitted improper evidence over plaintiff's objection. These points require a brief review of the testimony.

The evidence indicates that an official of the bank which was financing plaintiff had heard of his dispute with the lumber company and had invited the parties to meet in his office for a discussion. The meeting was held and was attended by the plaintiff and his son, the president and secretary of the lumber company, and the bank official. All of these persons testified at the trial and all concur that there had been an agreement that the entire account should be rechecked by representatives of the parties.

Defendant's witnesses further testified that the plaintiff thought the accounting would show the balance due was much less than claimed, but he admitted that the delivery tickets were correct. The plaintiff's son had been active in the course of construction of the houses as an agent of plaintiff, and this son had received a four-year course in business college. Plaintiff designated his son to do the accounting, and stated that the figures arrived at on the recheck should bind both parties. This is corroborated by the bank official, who testified that plaintiff agreed to be bound by the result and to pay the balance found.

The president of the lumber company and the plaintiff's son then checked over some thousands of delivery tickets. Obviously, it was a large undertaking to check all these deliveries against the original contracts, to determine what was under the contract, what was extra, and whether the prices conformed to the contract, with proper credits for returned material and payments. It required many hours of labor, which was occasionally interrupted, but in all, consumed the better part of eight working days. When completed, the two participants marked the result "OK" and affixed their respective initials.

An employee of defendant testified that he was in the office when the account was completed and heard plaintiff's son say, "$10,000.00 is a lot of money but it is right." Defendant's officer also testified as to the final conversation when the account was initialed.

Plaintiff's son testified that there had been some alterations in the final account after he had initialed it. This is denied by defendant's witnesses.

Both plaintiff and his son testified that the son had been designated to go over the accounts, but both deny that plaintiff had ever said he would be bound by the result, or anything to that effect.

On the question of the authority of the son to bind plaintiff on an account stated, the witnesses divide three to two in favor of defendant; moreover, it appears highly unlikely that so much time and effort would be spent on checking the account, if the result was to be meaningless and have no effect. Therefore, we hold ...


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