Gearhart v. Hyde

• Citation: 164 N.W. 58,39 S.D. 273
• Decision Date: 07 August 1917
• Docket Number: 4146
• Parties: NAPOLEAN B. GEARHART, Plaintiff and respondent, v. CHARLES L. HYDE, Defendant and Appellant.
• Court: Supreme Court of South Dakota

39 S.D. 273

164 N.W. 58

NAPOLEAN B. GEARHART, Plaintiff and respondent, v. CHARLES L. HYDE,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Hughes County, SD

Hon. John F. Hughes, Judge.

#4146--Affirmed

John A. Holmes, P. W. Dougherty

Attorneys for Appellant.

Gaffy & Stephens

Attorneys for Respondent.

Opinion filed August 7, 1917. Rehearing denied November 2, 1917

McCOY, J.

This action was brought to recover upon an account the value of certain services performed by plaintiff as a physician and surgeon in treating and caring for a minor son of defendant, who had received an injury by coming in contact with an electric light wire. Plaintiff alleged that such services were performed upon the express request of defendant and were reasonably worth $9,400. Defendant admitted that the services were performed upon his request, and alleged that the same were worth not to exceed $350. The jury returned a verdict in favor of plaintiff for the sum of $3,091.40, including interest. From an order overruling a motion for a new trial, and the judgment rendered on said verdict, defendant appeals.

Among other things, the learned trial court instructed the jury that plaintiff was entitled to recover interest at the rate of 7 per cent, per annum from the 9th day of December, 1912, to the date of verdict, upon whatever amount they should determine was due to respondent. To the giving of this instruction appellant duly excepted. We are of the opinion that there was error in the giving of this instruction. The account in question was closed on the 9th day of December, 1912; that being the date when respondent ceased performing professional services under said contract. No payments were made thereon, and, so far as appears from the record, no mutual offsets of any kind existed. Whatever amount was due to plaintiff for such services became due and payable on the 9th day of December, 1912. Ordinarily money due and payable on an account draws interest from the date of tile ascertainment of the balance or amount payable thereon. Sections 1414 and 1417, Civil Code. In many jurisdictions it seems to be held that where the value of the services, or other subject of account, is readily ascertainable by either party by resort to well-known and fixed standards of customary or market values, such an account will draw interest from the time that the amount payable thereon should have been ascertained and paid; but where the value of the services performed, or other subject of account, is of such a nature and character as not to be susceptible of ascertainment by computation, or by reference to well-known standards of market values, the plaintiff is not entitled to interest prior to verdict. In the case of Laycock v. Parker, 103 Wis. 161, the Supreme Court of Wisconsin, in passing on a like question under a similar statute, said:

"The true principle, which is based on the sense of justice in the business community and on our statute, is that he who retains money which he ought to pay to another should be charged interest upon it. The difficulty is that it cannot well be said one ought to pay money, unless he can ascertain how much he ought to pay with reasonable exactness. Mere difference of opinion...