Davidson Grocery Co. v. Johnston

• Decision Date: 28 June 1913
• Parties: DAVIDSON GROCERY CO., a Corporation, Respondent, v. DUNCAN JOHNSTON and JULIUS RAABE, Appellants
• Court: Idaho Supreme Court

133 P. 929

24 Idaho 336

DAVIDSON GROCERY CO., a Corporation, Respondent, v. DUNCAN JOHNSTON and JULIUS RAABE, Appellants

Supreme Court of Idaho

June 28, 1913

PLEADING-VARIANCE-RIGHT OF RECOVERY FOR TORTIOUS TAKING OF PERSONAL PROPERTY-ACCOUNT STATED-SUFFICIENCY OF EVIDENCE.

1. Variance means material difference. It is not a variance when the proof does not show all the points in a declaration. Variance arises when there is a substantial departure from the issue in the evidence adduced, and must be in some matter which in point of law is essential to the charge or claim.

2. Where a complaint alleges a cause of action for the recovery of the value of personal property sold and delivered, and the evidence shows a tortious taking and conversion, the action is one of assumpsit upon contract of sale and promise, and if demand is made for the property and the property is not delivered to the seller, and the answer admits that the defendant had purchased personal property of plaintiff and paid for it, and alleges payment for all the property bought and purchased of the plaintiff, recovery may be had for the value of the property proven to have been tortiously taken.

3. Where the evidence offered is in support of the pleadings consisting of the complaint and the answer, the evidence is not in variance with the allegations of the pleadings. The right of recovery arises under the rule of law that the owner of the goods may sue to recover the reasonable value thereof on the rightful assumption that the taker proposed, not to take the same without compensation to the owner, but to pay him the reasonable value thereof.

4. An account stated is a document, a writing which exhibits the state of account between the parties, and the balance owed one to the other, and when assented to, either expressly or impliedly, it becomes a new contract. An action upon it is not founded upon the original items, but on the balance agreed to by the parties; but the account, in order to constitute a contract, should appear to be something more than a mere memorandum. It should show upon its face that it was intended to be a final settlement up to date, and this should be expressed with clearness and certainty.

5. Where there is a substantial conflict in the evidence, the verdict of the jury will not be set aside by this court on appeal.

6. Held, that the evidence supports the verdict of the jury.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action in assumpsit to recover the value of personal property where it was tortiously taken. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Hawley Puckett & Hawley, C. M. Kahn and C. H. Edwards, for Appellants.

Plaintiff having seen fit to "waive" the tort, is bound by such waiver for all time, and cannot again refer to the same either by evidence or otherwise. If he desired to sue upon an implied contract growing out of the tortious acts of the defendants and to rely upon the evidence of such tortious acts in order to establish the implied contract, the complaint did not show that desire. It would be necessary for it to go further and to allege in its complaint those very tortious acts from which the promise could be implied, otherwise the very object of the reform system of pleading would be subverted. The pleading of one state of facts and the introduction of evidence tending to establish another is not permitted even under the doctrine of waiver of tort. The defendant is entitled to know what the plaintiff expects to prove, and a complaint which permits proof of both contract and tort will not be countenanced. (Pomeroy, Remedies and Remedial Rights, sec. 572, p. 536; Phillips v. Mashbrook, 24 Mo.App. 129; Knickerbocker Min. Co. v. Hall, 3 Nev. 194; Houston E. & W. T. Ry. Co. v. Ryan (Tex. Civ. App.), 38 S.W. 221; Finlay v. Bryson, 84 Mo. 664; Stockert v. Mackey, Nesbit & Co., 34 Ill.App. 476; 2 Abbott's Trial Brief, pp. 1683, 1715, secs. 129, 152; McFadden v. Sims, 43 Tex. Civ. App. 598, 97 S.W. 335; Tacoma Mill Co. v. Perry, 40 Wash. 44, 82 P. 140; Sandeen v. Kansas City, St. J. Ry. Co., 79 Mo. 278; Cropsey v. Sweeney, 27 Barb. (N. Y.) 310; Peay v. Salt Lake City, 11 Utah 331, 40 P. 206; Wilson v. Haley Livestock Co., 153 U.S. 39, 14 S.Ct. 768, 38 L.Ed. 627; Degraw v. Elmore, 50 N.Y. 1; 13 Ency. of Evidence, 651.)

The accounts rendered during the time it was alleged in the complaint that the defendants became indebted to the plaintiff were accounts stated, and as far as the relation of debtor and creditor is concerned, these accounts stated fully settled the same. (1 Cyc. 364, 380; 1 Standard Ency. 210.)

After an account stated has been proven as in this case, it will be presumed, in the absence of evidence to the contrary, to include all items then due from one to the other. (1 Ency. of Ev. 184; Taylor v. Thwing, 21 Misc. 73, 46 N.Y.S. 892; Johnson v. Johnson, 4 Call (Va.), 38.)

Concealment or misrepresentation by the debtor is no reason to open an account stated. (Vance v. Supreme Lodge of Frat. Brotherhood, 15 Cal.App. 178, 114 P. 83; Johnson v. Gallatin Valley M. Co., 38 Mont. 83, 98 P. 883.)

Cavanah, Blake & MacLane, for Respondent.

The Code of Civil Procedure was adopted verbatim from the California code of 1872, and the cases under that code are, therefore, peculiarly appropriate, being, in effect, binding and not merely persuasive authorities. That court has consistently held, from the earliest times, that assumpsit for goods sold and delivered may be maintained on facts constituting a conversion or theft. (Fratt v. Clark, 12 Cal. 89; Roberts v. Evans, 43 Cal. 380; De La Guerra v. Newhall, 55 Cal. 21; Lehmann v. Schmidt, 87 Cal. 15, 25 P. 161; Heidt v. Minor, 89 Cal. 115, 26 P. 627.)

The question has been considered by the court of Montana, under a code likewise adopted from California. (Galvin v. Mac. M. & M. Co., 14 Mont. 508, 37 P. 366. See, also, Crown Cycle Co. v. Brown, 39 Ore. 285, 64 P. 451; Hirsch v. Leatherbee Lumber Co., 69 N.J.L. 509, 55 A. 645; Downs v. Finnegan, 58 Minn. 112, 49 Am. St. 488, 59 N.W. 981; Terry v. Munger, 121 N.Y. 161, 18 Am. St. 803, 24 N.E. 272, 8 L. R. A. 216; Challiss v. Wylie, 35 Kan. 506, 11 P. 438; Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782; Braithwaite v. Akin, 3 N.D. 365, 56 N.W. 133. Cases cited in 4 Cyc., tit. "Assumpsit," 332; 5 Cent. Dig., tit. "Assumpsit," sec. 50.)

There was no account stated under the facts of this case, and if there was such an account, it was thoroughly and completely impeached. (Coffee v. Williams, 103 Cal. 550, 37 P. 504; Beltaire v. Rosenberg, 129 Cal. 164, 61 P. 916; Harrison v. Henderson, 67 Kan. 202, 72 P. 878.)

No account stated could arise out of the transactions here involved, because the defendant denies the liability and denies the receipt of the goods in question, and an account stated cannot be used as a basis of creating a liability where none existed, but simply for the purposes of determining the amount of an admitted liability. (1 Ency. L. & P. 707; Lemere v. Elliott, 6 Hurl. & N. 656, 30 L. J. Ex. 350, 7 Jur., N. S., 1206; Austin v. Wilson, 11 N.Y.S. 565; Kemp v. Peck, 59 Hun (N. Y.), 118.)

An account stated may be impeached for fraud or mistake, and whether it has been so impeached is a question of fact for the jury. (Colorado F. & I. Co. v. Chappell, 12 Colo. App. 385, 55 P. 606.)

Where there is a substantial conflict in the evidence, the verdict of a jury will not be disturbed. Attention is called to the fact that no motion for a new trial has been interposed in this cause. (Buster v. Fletcher, 22 Idaho 172, 125 P. 226.)

STEWART, J. Alishie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an action for conversion of personal property of the value of $ 7,517.25. The case was tried to a jury and a verdict was rendered in favor of the plaintiff for the sum of $ 5,000. An appeal was taken from the judgment and the evidence is brought to this court on appeal for review.

The complaint alleges that the Davidson Grocery Company is a corporation, existing under the laws of Idaho, and that between the 1st day of December, 1910, and the 5th day of January, 1912, the plaintiff sold and delivered to the defendants, at the special request of said defendants, about 25,725 pounds of coffee of the reasonable value and agreed price of 25 cents per pound; 3,600 pounds of tea of the reasonable value and agreed price of 30 cents per pound; 100 pounds of sugar of the reasonable value and agreed price of 6 cents per pound, amounting in the aggregate to the sum of $ 7,517.25; that said sum nor no part thereof has been paid and that the same is due.

A separate answer was filed by each of the defendants. The defendant Raabe denies the incorporation of the plaintiff company, for lack of knowledge or information sufficient to form a belief; the defendant also specifically denies the portion of the complaint alleging the sale and delivery of the property described in the complaint. As a separate answer and defense the defendant also alleges that during the times mentioned in the complaint the defendant was and is engaged in conducting a retail coffee, tea and spice business in Boise, and that plaintiff was at all times mentioned in the complaint, and long before and still is engaged in conducting wholesale grocery and coffee roasting business in Boise, and doing a jobbing business in coffees, teas and spices, and that during said time there existed a certain course of business dealings and transactions consisting of the purchase from the plaintiff by the defendant of coffees teas and spices and such other articles of merchandise as are usually handled and kept and sold by retail dealers, and that...