Mount v. Riechers

• Decision Date: 08 July 1932
• Citation: 140 Or. 267,13 P.2d 335
• Parties: MOUNT et al. v. RIECHERS.
• Court: Oregon Supreme Court

13 P.2d 335

140 Or. 267

MOUNT et al. v. RIECHERS.

Supreme Court of Oregon

July 8, 1932

Rehearing Denied Aug. 1, 1932.

Department 2.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Action by Guy Mount and another, doing business under the name of Drs. Mount, of Oregon City, Or., against W. J. Riechers as executor of the estate of David Martiny, deceased. Judgment for defendant, and plaintiffs appeal.

Affirmed.

This action was instituted to recover for professional services rendered. The plaintiffs, practicing physicians and surgeons are engaged in conducting a medical and surgical clinic at Oregon City, Or., which they, with Dr. Hugh S. Mount, now deceased, established more than twenty years ago.

The complaint alleges, in substance, that, on or about September 19, 1926, one David Martiny presented himself to plaintiffs for certain attention, and that, at his request, they performed medical and surgical services for him as follows:

                            Medical service, Sept. 19, 1926, to Oct. 6, 1926
                            
                          
                             $ 150.00
                          
                            Blood chemistry, Sept. 22, Oct. 2, Oct. 4, Nov. 4
                            1926, four at $20.00 each
                            
                          
                            80.00
                          
                            Tissue examination Oct. 14, 1926 (pathological)
                            .........................
                          
                            20.00
                          
                            Operation for removal of prostate gland, including
                            assistants, and post operative care from Oct. 6 to Nov.
                            23, 1926 ...................
                          
                            1,750.00
                          
                            
                          
                            ---------
                          
                            Total,
                            ............................................................
                          
                             $2,000.00
                          
                

The plaintiffs aver that the services so performed were of the reasonable value of $2,000, and that no part thereof has been paid except $500 paid by Martiny on November 26, 1926, leaving a balance due and owing on that date of $1,500; that, on or about November 26, 1926, the plaintiffs and Martiny "had a settlement and agreement as to the reasonable value of said service, when it was then and there agreed that said service should be $2,000.00, of which $500.00 has been paid, and the said David Martiny *** agreed to pay the balance of $1,500.00"; that about the year 1929 Martiny died, leaving an estate in Oregon, and that the defendant is the duly qualified and acting executor thereof; that, prior to filing this action, the plaintiffs filed with the executor their verified claim against the estate of deceased in the amount of $1,500, which claim was rejected and disallowed by the executor.

Plaintiffs aver that they are the owners and holders of the above claim of $1,500, and demand judgment against the estate for that amount, with interest.

The defendant executor moved for an order requiring the plaintiffs to elect as to whether they purposed to proceed upon the theory of reasonable value of the services alleged to have been rendered or upon an account stated, which motion was overruled. Thereupon he filed his answer, wherein he admits that the partnership rendered medical service to Martiny between September 19 and November 23, 1926, and that Martiny paid the partnership $500. He further admits that the plaintiffs filed a verified claim for $1,500 against Martiny's estate, which was rejected and disallowed by him as executor. By his separate answer he avers that the reasonable value of the services rendered for Martiny was $500, and no more, and that, on November 26, 1926, Martiny paid the partnership the sum of $500, in full settlement of the amount due and owing by him. He demands that the complaint be dismissed, and claims his costs and disbursements.

The plaintiffs' reply put at issue the new matter contained in the answer.

In charging the jury, the court said: "The right of action asserted by the plaintiffs is upon an account stated."

As a result of the trial, the jury returned into court the following verdict, which appears as a part of the judgment entry:

"We, the jury, sworn to try the above-entitled cause, find for the defendant and against the plaintiffs, and answer the questions propounded as follows:

"Question No. 1. Was there an agreement and settlement whereby David Martiny agreed to pay plaintiffs $2,000.00 for medical and surgical services? Answer. No.

"Question No. 2. Is there sufficient evidence independent of the testimony of the plaintiffs, or corroborative of the testimony of the plaintiffs' testimony that satisfies you plaintiffs are entitled to recover upon the settlement alleged in the complaint? Answer. No

"W. H. Leach, Foreman."

From the judgment entered, the plaintiffs have appealed to this court, assigning numerous errors.

O. B. Mount, of Baker (F. W. Smith, of Salem, on the brief), for appellants.

Geo. P. Winslow, of Tillamook, for respondent.

BROWN, J. (aftering stating the facts as above).

The plaintiffs tried this case upon the theory of a stated account.

The defendant proceeded upon the theory of reasonable value.

Among the instructions requested by plaintiffs is the following: "From the pleadings and evidence in this case, your verdict must be for the plaintiffs in the sum of $1,500.00."

This instruction was refused, and plaintiffs assign such refusal as error, on the ground that "the stated account was admitted."

The plaintiffs' evidence is to the effect that, when David Martiny was discharged from their hospital as cured, he asked for his bill and was informed by Dr. Hugh S. Mount that the charge was $2,000; that he paid $500 on the account, and stated that he had a lot of timber holdings and some real property that he did not like to sacrifice at that time, and he asked for a year's time in which to pay the balance, which was granted.

When plaintiffs had concluded their case, Dr. Ringo, called as a witness for the defendant, after expressing his opinion as to the reasonable charge for an operation for the removal of the prostate gland, testified that, in December following the operation, Martiny came into his office a couple of times for the purpose of having the dressing changed, and "I asked him what they charged him. *** He said $2,000.00, and I asked him if he paid it. He said he paid $500.00. I said: 'Are you going to pay the rest of it?' He said: 'I don't think I will."'

The plaintiffs assert in their brief: "Here was a stated account, and the five hundred dollar payment was a ratification of it."

In the early case of Crawford v. Hutchinson, 38 Or. 578, 65 P. 84, this court held that, when an account rendered has been assented to, the question of liability becomes one of law for the court, and not one of fact for the jury. From point 3 of the syllabus of that case we take the following: "Where the testimony showing a right of action in plaintiff and against defendant is undisputed and no counterclaim or set-off is pleaded, the trial judge may properly instruct the jury to return a verdict for the plaintiff."

It is generally held that an account stated is final and unimpeachable excepting for fraud, accident, or mistake. Griffith v. Hicks, 150 Ark. 197, 233 S.W. 1086, 18 A. L. R. 882.

But the difficulty that confronts the court in this cause lies in the fact that the defendant denies that the account has been stated or agreed to.

The record shows that this claim was filed with the executor of the estate, who rejected the same, and that action was thereupon instituted.

It is the law of this state "that no claim which shall have been rejected by the executor or administrator *** shall be allowed by any court, referee, or jury, except upon some competent satisfactory evidence other than the testimony of the claimant." Or. Code 1930, § 11-504. See Franklin v. Northrup, 107 Or. 537, 215 P. 494.

The defendant offered testimony that, at the time of the alleged agreement constituting the stated account, Martiny had on deposit with the Bank of Tillamook the sum of $3,500. He also adduced testimony in effect that the charge for the services rendered by the plaintiffs was excessive, and we have referred to testimony to the effect that, within a short time after the alleged agreement to pay $2,000 for the services rendered him, Martiny said, in substance, that he did not think he would pay any more on the account. So far as the record discloses, however, he at no time denied his promise to Dr. Hugh S. Mount.

The plaintiffs contend that the court erred in admitting any evidence of the reasonable value of the services rendered by Drs. Mount. The purpose of the testimony to which this objection is directed is stated by the court in the following instruction: "Evidence of the character of and of the value of the medical services rendered by plaintiffs to Martiny has been admitted in evidence, both in behalf of the plaintiffs and in behalf of the defendant, but this testimony was admitted only for the purpose of affecting the probability as to whether or not a settlement of the character alleged in the complaint was or was not entered into, and such testimony should be considered by you for that purpose, and also for the additional purpose of establishing that there existed at the time some foundation in the form of service rendered upon which to base a settlement as to the amount to be paid by Martiny."

In support of this instruction, see 2 Jones' Commentaries on Evidence (2d Ed.) pp. 1115, 1116, §§ 603, 604.

The plaintiffs assert that, if testimony of reasonable value of services was admissible at all, it was error to permit the Tillamook doctors called by defendant to testify as to what the specific charge...