
    H. Schwaner et al., Respondents, v. Winn Boiler Compound Company, Appellant.
    St. Louis Court of Appeals,
    November 24, 1885.
    I. Evidence — Accounts.—La an action where the petition avers the sale and delivery of articles set out in the form of an account with the price attached to each item, and that the defendant agreed to pay these specified prices, evidence of the reasonable value of the items is irrelevant.
    2. Appellate Practice — Aeeirmance with Damages. — An appeal wholly without merit justifies the conclusion that it was taken for delay, and the judgment will be affirmed with damages.
    Appeal from the St. Louis Circuit Court, W. H. Horner, Judge.
    
      Affirmed.
    
    W. C. Marshall, for the appellant.
    Muench & Cline, for the respondent.
   Rombauer, J.,

delivered the opinion of the court.

This is an action to recover a balance claimed to be due by the defendant to the plaintiffs for merchandise sold.

The petition avers the sale, sets out the dates and amounts of the various items, and then alleges that the defendant agreed to pay for the merchandise to plaintiffs, certain specified prices.

The answer is a general denial, and contains a counter-claim for alleged overpayments made by the defendant to the plaintiffs, in former transactions between them.

The plaintiffs gave evidence tending to show the sale of the merchandise at agreed prices, and also evidence tending to show that the defendant had admitted the correctness of their demand, by repeatedly promising to pay the balance as claimed.

At the close of the plaintiffs’ case, the defendant moved for a non-suit, which the court refused.

The defendant then introduced testimony tending to show that the market price of the articles sold were lower than the amounts charged therefor in the plaintiffs’ account. No legal evidence was given tending to support his counter-claim.

The court refused, up on the defendant’s request, to instruct the jury that the plaintiffs could recover no more than the reasonable market value of the articles sold.

The jury found a verdict for the plaintiffs, for the balance claimed with interest; and against the defendant on the counter-claim.

The appellant contends that his motion for a non-suit should have been sustained, because the petition was. on an account, and not upon a contract for certain prices-, but fails to support that contention either by any tenable argument, or a solitary authority.

It will be seen by the above statement that the appeal. is wholly without merit, and the only conclusion this court can draw from the record is,-that the appeal was taken for purposes of delay.

All the judges concurring,

the judgment is affirmed, with ten per cent, damages.  