Gunn v. Perseverance Mining & Milling Co.
| Decision Date | 19 February 1913 |
| Citation | 23 Idaho 418,130 P. 458 |
| Court | Idaho Supreme Court |
| Parties | JAMES GUNN, Respondent, v. PERSEVERANCE MINING & MILLING COMPANY, a Corporation, Appellant |
ACCOUNT-SETTLEMENT OF-ACCOUNT STATED-VERDICT-SUFFICIENCY OF EVIDENCE-INSTRUCTIONS.
1. Evidence held sufficient to sustain the verdict.
2. Held, that the evidence does not show an account stated.
3. Held, that the court did not err in giving instructions.
APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.
Action to recover for services performed. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded in favor of respondent.
Wyman & Wyman, for Appellant.
We do not contend that under the law as interpreted by the weight of judicial authority, an accord becomes a bar prior to performance or "satisfaction," but that under the facts of this case, the settlement became an "account stated," or an "account rendered" or "settled," and no fraud or mistake being alleged in the complaint or shown by the evidence, that the plaintiff is bound thereby. (Hendy v. March, 75 Cal. 566, 17 P 702; Coffee v. Williams, 103 Cal. 556, 37 P. 504; Mayberry v. Cook, 121 Cal. 588, 54 P. 95.)
The mode of arriving at a settlement in this case, which is probably the method of settling the vast majority of accounts, especially in this western country, made it no less an "account stated," and the plaintiff should be estopped from denying the same. (Hale v. Hale, 14 S.D. 644, 86 N.W. 650.)
A. L Fletcher and Johnson & Haddock, for Respondent.
Where there is sufficient evidence to form a legitimate basis for a finding by the jury of the existence or nonexistence of a stated account, the verdict will not be disturbed. (Warder etc. Co. v. Angell, 99 Wis. 298, 74 N.W. 789.)
Running through all the definitions of accounts and accounting (1 Cyc. 362-364) is the doctrine that there must be a list or catalogue, an actual exhibit of charges and credits, something for the inspection and examination of the parties, to facilitate the determination of the balance due by simple calculation.
In the case at bar the defendant pleaded an accord but failed to plead or prove satisfaction. (1 Cyc. 307; 1 Cent. Dig., tit. "Accord and Satisfaction," par. 123.)
An accord to be good, must be in full satisfaction, and must be executed. A promise to execute or to perform at a future time would not support the plea of accord and satisfaction. (Bankers' Union v. Favalora, 73 Neb. 427, 102 N.W. 1013; Arnett v. Smith (1912), 11 N.D. 55, 88 N.W. 1037; Carpenter v. Chicago Ry., 7 S.D. 584, 64 N.W. 1120; Howard v. Norton-Morgan Commercial Co., 11 Ariz. 158, 89 P. 541.)
This action was brought to recover from the defendant, the Perseverance Mining & Milling Co., the sum of $ 1,770, with interest thereon and an attorney's fee of $ 200, for services alleged to have been rendered by the plaintiff for the defendant corporation.
The appellant corporation answered, denying many of the allegations of the complaint, and averred as a further defense that there was an accounting between the plaintiff and defendant, and there was found to be due to the defendant a balance of $ 500, and that said settlement was evidenced by the following writing:
The appellant tendered on the trial said sum of $ 500.
The cause was tried by the court with a jury and the jury rendered a verdict of $ 1,125, with interest thereon in favor of the plaintiff, and judgment was entered on said verdict. The appeal is from the judgment.
The appellant assigns several errors, which are to the effect that the court erred in entering judgment; that the verdict is against law; that the jury disregarded certain instructions given by the court; that the court erred in giving certain instructions; that the evidence shows that there was an account stated; that the...
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