L. C. Jones Trucking Co. v. Jenkins
| Decision Date | 02 July 1957 |
| Docket Number | No. 37276,37276 |
| Citation | 313 P.2d 530 |
| Parties | L. C. JONES TRUCKING COMPANY, Inc., Plaintiff in Error, v. Ruth JENKINS, as Administratrix of the Estate of A. W. Jenkins, Deceased, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where evidence of an accord and satisfaction is admitted without objection that it is not within the issues, although that specific defense is not properly pleaded, the pleadings should be considered amended and the evidence should be considered and given the same force and effect as if it were legally admissible originally.
2. Where in an action to recover an attorney fee, the evidence tends to prove that the debt was disputed and unliquidated and that the parties had reached an accord and satisfaction by agreement on a lesser sum than that claimed, followed by payment and acceptance of the lesser amount, it was error for the trial court to eliminate, from the consideration of the jury, the defense of accord and satisfaction, by instructing the jury 'that the acceptance of a sum less than the amount claimed to be due, in full satisfaction and discharge of the debt, is not defense to the collection of the balance unless * * * there was some additional consideration or benefit to the party relinquishing part of his claim.'
3. Where erroneous instructions, in connection with other instructions and evidence, disclose that appellant was deprived of fair trial, cause will be reversed for new trial.
4. The inhibition of the Dead Man's Statute (12 O.S.1951, sec. 384) must be raised in the trial court by an objection to the competency of the witness and not merely by an objection to the competency of the evidence offered by the witness.
5. Only one who is a party to a court action is prohibited by Title 12 O.S.1951, sec. 384, from testifying concerning transactions and communications had with a deceased person under the conditions prescribed by said section.
Appeal from the Court of Common Pleas of Oklahoma County; Carl Traub, Judge.
Action by Ruth Jenkins, Administratrix of the Estate of A. W. Jenkins, Deceased, as plaintiff, against L. C. Jones Trucking Company, a corporation, defendant, to recover money allegedly due her deceased husband as fees for services rendered as an attorney for defendant. Verdict and judgment for plaintiff and defendant appeals. Reversed and remanded for new trial.
Sam S. Gill, Oklahoma City, for plaintiff in error.
Woodrow H. McConnell, Oklahoma City, for defendant in error.
This is an action, brought by the plaintiff, Ruth Jenkins, Administratrix of the Estate of A. W. Kenkins, deceased, against the defendant, L. C. Jones Trucking Company, a corporation, for the recovery of an unpaid balance allegedly due as attorney's fees for services performed for the defendant by plaintiff's decedent in the latter part of 1953. The parties will be referred to as they appeared in the trial court, being inverse to the order in which they appear here.
For a number of years prior to his death in May 1954, the deceased, a practicing attorney, had represented the defendant on numerous occasions. Subsequent to his death, plaintiff found in his files a statement dated October 23, 1953, for fees for services rendered defendant in connection with hearings before the Interstate Commerce Commission. The statement was for $500 and a pencil notation on the statement indicated that $300 had been paid thereon. Another statement, dated December 30, 1953, for the same type of services was for $1,750 and a notation indicated a payment of $700 thereon. This action was for the recovery of the $1,250 balance shown to be due on these two statements.
Plaintiff's petition and evidence bottomed her cause upon a quantum meruit basis, with a practicing attorney appearing as a witness and testifying to the reasonableness of the charges made by the plaintiffs' decedent for the services performed as identified on the statements. Defendant answered by way of general denial, with an admission of the legal status of the parties and of the deceased, followed by the following plea,
'The defendant specifically denies that it is indebted to the plaintiff for any sum and states that it has paid any sum due the said A. W. Jenkins at any time due for any reason.'
The president and manager of the defendant appeared as a witness and admitted the performance of the services by the deceased. He further testified that, in February, 1954, the deceased was called by telephone and was invited out to defendant's office for the purpose of settling the account; that, pursuant thereto, the parties did get together and discuss the reasonableness of the charges made for such services; that they mutually agreed upon an amount which was satisfactory to both and defendant gave deceased a check for the agreed amount. A trial to a jury resulted in a verdict and judgment for plaintiff for the amount sued for and the defendant has appealed.
The first proposition here presented by defendant requires a reversal of the judgment. It is founded upon objections and exceptions to the giving of the following instructions to the jury by the trial court, to-wit:
'You are instructed that the acceptance of a sum less than the amount claimed to be due in full satisfaction and discharge of the debt is no defense to the collection of the balance unless you further find that there was some additional consideration or benefit to the party relinquishing part of his claim.'
'You are instructed that if you find that the reasonable value of the services performed for the defendant by plaintiff's husband were of the value claimed, then you must find for the plaintiff unless you further find that the decedent accepted...
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Melinder v. United States
...reaches only parties to an action, Taxpayer's objection to the competency of this witness' testimony is overruled. Jones Trucking Co. v. Jenkins, 313 P.2d 530 (Okl.1957). The Taxpayer has also objected to a summary (Exhibit 9) prepared by the Government relating to certain expenditures alle......
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...a bar to any further recovery on the claim. National Bank of Commerce v. State, 368 P.2d 997, 1002 (Okl.1962); L. C. Jones Trucking Co. v. Jenkins, 313 P.2d 530, 533 (Okl.1957). The presence of consideration in this case is obvious. The state received $2,794,800.38. The appellees waived the......
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Oklahoma Water Resources Bd. v. Texas County Irr. and Water Resources Ass'n, Inc.
...745 (Okla.1960).6 Rosser- Moon Furniture Co. v. Harris, 191 Okla. 607, 1 31 P.2d 1004, 1006-1007, (1942); L.C. Jones Trucking Company v. Jenkins, 313 P.2d 530, 533 (Okla.1957).49 The philosophy of public juris was recognized and utilized in State ex rel. Poulos v. State Board of Equalizatio......
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Morrow Development Corp. v. American Bank and Trust Co., s. 77034
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