Columbia River Packing Co. v. Tallant

• Decision Date: 12 December 1904
• Docket Number: 2,764.
• Citation: 133 F. 990
• Parties: COLUMBIA RIVER PACKING CO. v. TALLANT.
• Court: U.S. District Court — District of Oregon

133 F. 990

COLUMBIA RIVER PACKING CO. v. TALLANT.

No. 2,764.

United States Circuit Court, D. Oregon.

December 12, 1904

BELLINGER District Judge.

The petition in this case sets forth numerous errors, oversights and mistakes of fact, and errors of law, as grounds for the rehearing prayed for. The instances are specified where the court is alleged to have overlooked, failed to consider, and disregarded the evidence, where it overlooked plaintiff's objections, did not consider some of the points made in plaintiff's brief, and disregarded others, admitted evidence that was incompetent, was misled in regard to the evidence, was misled in making its decision as to the accounting, and misapplied the case cited in the opinion.

It is stated in the opinion of the court in this case that 'there is nothing to show that Tallant (the defendant) made any promise in respect of this report (a report made by an accountant of the result of his examination of the books, accounts, and vouchers of the firm of Tallant & Kendall), or that he had any knowledge respecting it, except that derived from Fulton ' As showing that in this statement the court disregarded the evidence, the petition for a rehearing submits that it is admitted by the defendant that the books of account of the business in question were kept by him; that the plaintiff's theory of its case was not that there was an express promise or assent by the defendant, but that he impliedly acquiesced, and for a long time, upwards of 18 months prior to the beginning of the action, made no objections whatever to the status of the account, and that an accounting was had between the defendant and Kendall, and thereafter they agreed that the expert should make a statement of what the books showed, and that that statement was made after the accounting had between defendant and Kendall; and, further, that, as a matter of law, it is not necessary to a recovery by plaintiff that the defendant should have made any promise in respect of the amount due, or with respect to the expert's report. But this testimony so far from being disregarded by the court, is summarized in the opinion, where it is stated in effect that Kendall testified that the packing company and defendant had an accounting as to the seining business, at which the defendant and witness were present; that they had the books of the company, and went mutually over the different sides of the account between them, and that there was found due from defendant the sum of $4,785.46; that the result of that accounting was, by agreement between Kendall and defendant, placed in the form of a paper writing, etc., from the fact that the accountant's statement was made from the books, vouchers, etc., of the company, at the request of the witness, and furnished to the witness, and thereafter mailed to the defendant, or to an attorney to be presented to the defendant. It is charitable to this witness to assume that he thought that this statement, so prepared, constituted an accounting, and that he implied from it 'an agreement,' etc.

Two things clearly appear from Kendall's cross-examination: First, that the witness and the defendant did not at any time go mutually over the different sides of the account, and that there was no agreement put in the form of a writing between them; and, second, that the statement of the accountant constitutes the account to which Kendall testifies. The following is an excerpt from the cross-examination of Kendall:

'Q. Do you mean to testify that, at any time or place, you and Mr. Tallant agreed between you, verbally, that there was a certain balance due from Mr. Tallent to your company, the Columbia River Packing Company? A. The books showed it all the time. Q. I don't care what the books showed. Do you mean to say that you gentlemen agreed that there was any amount due? A. The amount that appeared on the books? Q. No, I want the sum certain in which you say the account was stated. Was there ever any agreement between you and Mr. Tallant, or your company and Mr. Tallant, or acknowledgement verbally made, that he owed the plaintiff the sum for which this action is brought, namely, $4,785.46? A. There never was any dispute after the account was stated.'

This witness had previously, in his direct examination, testified as hereinbefore stated. When questioned in his cross-examination as to this statement, he said they went over the books together in San Francisco, and the testimony above quoted shows the nature of that 'accounting.' It fails to show any agreement, express or implied, by the defendant, and it justifies the inference that the witness did not state facts, but his conclusions from what 'the books showed * * * all the time,' and from the fact that he never heard from the defendant after the account's report 'was sent him.'

The defendant gives a circumstantial account of what took place between himself and Kendall in San Francisco at the time of the alleged accounting. This was in January or February 1902. The defendant had several meetings with Kendall, and with Kendall and Cutting, the president and secretary of the plaintiff company, in San Francisco, at the time referred to in Kendall's testimony, and one meeting with the two in the presence of a lawyer, Mr. Chickering. From defendant's testimony it appears that the books in question were not gone over. So far from acquiescing, by his silence or otherwise, in any statement of liability on his part, the defendant testifies that he informed both Cutting and Kendall of his contention that he was not liable on the account claimed; that the three parties went to Mr Chickering's office, when the defendant stated his side of the case, as he stated it on the trial, to the attorney; that...