Johnson v. Jones
| Decision Date | 11 May 1916 |
| Docket Number | No. 9030.,9030. |
| Citation | 112 N.E. 830,62 Ind.App. 4 |
| Parties | JOHNSON v. JONES. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; John J. Rochford, Judge.
Action by A. Halden Jones against Minnie L. Johnson. From a judgment for plaintiff, defendant appeals. Affirmed in part on condition.
Mark H. Miller, of Indianapolis, for appellant. Henley, Fenton & Joseph, of Indianapolis, for appellee.
Appellee recovered judgment on two paragraphs of complaint. The first paragraph was brought upon an account for services rendered by him as a licensed physician, and the second paragraph was upon an account assigned to him which also covered services as a physician rendered by the assignee, Lyman B. Stookey.
[1] Appellant first contends that the evidence shows that the agreements made with appellee and said Stookey fall within the statute of frauds, and cites the case of Harris v. Frank, 81 Cal. 280, 22 Pac. 856, to support her position. We do not consider that a parallel case to the one at bar. In that case the evidence showed that appellee was a mere guarantor, while in the present case the evidence shows without substantial conflict an original contract between the parties. It does not appear, as in the Harris Case, that appellant was to pay any bills contracted by her son, but, on the contrary, it does appear that she as an original promisor contracted to pay the claims both of the physician and the pathologist who rendered services requested by her for her son, when in the state of California, and that credit was given to her and not to her son. Such being the nature of the agreements, they were not void under the statute of frauds, though not in writing. Shaffer v. Ryan, 84 Ind. 140;Hayes v. Shirk, 167 Ind. 569, 78 N. E. 653.
The evidence fully supports the first pargraph of complaint. There is no dispute about the services having been rendered by appellee, that he charged appellant therefor the sum of $300, that such services were worth that sum, that he was paid on his individual account the sum of $125, leaving a balance unpaid of $175.
[2][3][4][5] We are also of the opinion that there is no proof whatever to disclose the value of the services rendered by Dr. Stookey, which claim was assigned to appellee, and sued on in the second paragraph of complaint. In the absence of an express agreement, one who brings to such a service as was rendered by him due care and skill can recover the reasonable and customary price therefor, but such reasonable and customary fee must be shown by competent evidence. Proof of the price charged by the complaint, without any proof of the value of the service performed, is not sufficient, and does not meet the test. Peck v. Martin, 17 Ind. 115;Board of Com. of Marion County v. Chambers, 75 Ind. 409. Appellee takes the position that as each paragraph of the complaint contains a statement of the account sued on, and each paragraph was duly verified, and as the appellee did not introduce evidence to refute the averments of the complaint, the case falls within the provisions of section 392, Burns 1914. The difficulty with this position is that the statute referred to is applicable to defaulted cases, while in the case at bar there was an appearance and an answer in general denial filed, which cast the burden on appellee who claimed the amount sued for in the second paragraph of complaint to prove the value of the services rendered, as was done...
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Contech Architects and Engineers, Inc. v. Courshon
...of proof is required because when the items or invoices are in dispute, there is no presumption that they are correct. Johnson v. Jones, (1916) 62 Ind.App. 4, 112 N.E. 830. We turn now to the matter before us, keeping in mind that we may reverse the decision only if it is contrary to law. T......
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