Colcord v. Conger

• Decision Date: 05 September 1900
• Citation: 1900 OK 96,10 Okla. 458,62 P. 276
• Parties: C. F. COLCORD v. WILLIAM P. CONGER.
• Court: Oklahoma Supreme Court

1900 OK 96

62 P. 276

10 Okla. 458

C. F. COLCORD v. WILLIAM P. CONGER.

Supreme Court of Oklahoma

Decided: September 5, 1900

Appeal from the Probate Court of Oklahoma County; before Asa Jones, Probate Judge.

Syllabus

¶0 1. SET-OFF--Uuadjudicated Sum. An unadjudicated sum due on open account cannot on motion be set off against a judgment.

2. IMPEACHMENT--Jurors Heard, When. Upon grounds of public policy, jurors will not be heard by affidavit, deposition, or other sworn statement to impeach or explain their verdict, or show on what ground it was rendered, or that they made a mistake, or misunderstood the law or the result of their finding, or to show what items entered into the verdict or how they arrived at the amount. Jurors will only be heard in support of their verdict or conduct when same is attempted to be impeached.

3. COSTS--Offer of Compromise--Defendant Must Pay, When. By the provisions of sec. 339, Civil Code, where a defendant before trial files with the court and serves opposing counsel with notice of an offer to compromise and allow judgment to be rendered for a less sum than that claimed by the plaintiff, and said offer is not accepted, and the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's cost from the time of the offer. And as a general rule the defendant will not be permitted to throw the plaintiff into the costs by proof of an off-set purchased after the time of the offer to compromise, or by making payments after such offer. But where the demand sued on is the primary debt of another, and the plaintiff sues as assignee of the account without having become the owner of the entire account, and the person primarily liable pays off part of the account to the person originally entitled to it, and before the plaintiff had made payment to such person, such plaintiff is in no position to claim any exception from the rule prescribed for taxing costs.

Keaton & Kearful, for appellant.

Milton & Beaty, for appellee.

BURFORD, C. J.:

¶1 The plaintiff, William P. Conger, sued Charles F. Colcord in the probate court of Oklahoma county for the sum of $ 188.14 on account, for board and lodging furnished, labor performed, and money expended for W. R. Colcord, the father of the defendant. One of the items embraced in the account was "To Mrs. Staats, 33 days nursing, $ 33.00." The petition was filed April 29, 1899. On May 10, 1899, Colcord filed with the court and served on counsel for plaintiff an offer to compromise by allowing judgment to be taken against him for the sum of $ 115.00. This offer was never accepted. The cause went to trial, and on September 29, 1899, judgment was rendered for Conger against Colcord for the sum of $ 111.95.

¶2 The facts appearing of record show that at the time Conger began his proceedings he had not paid Mrs. Staats for her services in nursing W. R. Colcord. In June, 1899, he gave her a check on the Bank of Commerce for the sum of $ 33.00, but the check had never been paid. On August 19, 1899, W. R. Colcord, for whom the services had been rendered, paid Mrs. Staats the $ 33.00 due her for services as nurse, and she assigned to him the check given her by Conger. The evidence is not in the record, and we are unable to say how much of this got before the jury on the trial of the cause. But it is stated in the record that the court excluded the receipt from Mrs. Staats to W. R. Colcord, for the reason that the signature was not properly identified.

¶3 After judgment Colcord filed his motion to have this $ 33.00 set off against the judgment, and offered to show by the testimony of jurors that the item of $ 33.00 was included in the amount for which they rendered verdict. The court declined to hear the testimony of the jurors, and overruled the motion. Exception was taken, and this ruling is assigned as error.

¶4 We think the court committed no error in this ruling. We know of no rule of law that permits an open account to be set off against a judgment. If the claim of $ 33.00 belonged to C. F. Colcord and had been reduced to judgment, in a proper proceeding, the one judgment might be set off against the other.

¶5 There were no special findings of fact, and the judgment of the court became final and conclusive as to all matters properly within the issues and submitted to the jury, and the court had no power to reduce the judgment by afterwards allowing an item of set off which had never been reduced...