Parmenter v. Douglass Tank Co.
| Decision Date | 24 November 1925 |
| Docket Number | Case Number: 15389 |
| Citation | 241 P. 471,115 Okla. 193,1925 OK 967 |
| Parties | PARMENTER, Trustee, et al. v. DOUGLASS TANK CO. |
| Court | Oklahoma Supreme Court |
Commissioners' Opinion Division No. 3.
Affirmed.
¶0 1. Account, Action on -- Unverified Account with General Denial--Burden of Proof--Prima Facie Case. Where the action is based upon an unverified itemized account for work and labor performed and materials furnished, and the same is put in issue by a general denial, the burden of proving the correctness of the account is upon the plaintiff; and any witness who would have been qualified to verify the account, under section 287, C. S. 1921, is competent to testify as to the correctness of the account, and any testimony tending to show that the items of the account are correct is sufficient to make out a prima facie case, and to shift the burden to the defendant, without proving the reasonable or market value of each item.
2. Appeal and Error--Review--Inconsistency of Verdict. Where the action is based upon an account for work and labor performed and materials furnished in a sum certain, and the defense is based upon breach of warranty in doing the work and a counterclaim for damages, and the jury return a verdict for plaintiff for a less sum than the amount sued for and proved without finding anything for defendant, such verdict is not such an inconsistency as will work a reversal of the judgment, on the ground that the court cannot determine how the jury arrived at the amount of the verdict.
Mosier, Bohannon & Mosier, for plaintiffs in error.
M. A. Dennis and Vilas V. Vernor, for defendant in error.
¶1 Plaintiffs in error were defendants, and defendant in error was plaintiff in the trial court, and the parties will be referred to here as they were there. The action was based upon an itemized account of $ 565.23, showing a credit for $ 200, and plaintiff obtained judgment for $ 265.23, and defendants appealed.
¶2 The former opinion prepared and handed down in this case treated the account sued on as a verified account. This theory was based upon the attitude of the parties in the briefs and in part upon the record in the case. The petition and amended petition had the account verified and the second amended petition, upon which the cause was tried, had the account unverified. The answer and cross-petition of defendants, filed after plaintiff's second amended petition, makes general denial to plaintiff's "petition", but does not mention the amended petitions. The answer admits that the defendants employed plaintiff to set up and repair a 1,600 barrel wooden oil tank and admits that it did the work and furnished the materials, but denies liability on the ground that the work was not done in the skillful manner agreed on, and, on account of the careless and unskillful manner of doing the work, the tank leaked and oil placed in it ran out, and to the damage of the defendants in the sum of $ 25,000. On appeal defendants, in their brief, do not deny the items of work done and materials furnished, but contend that there was no proof of the value of the services rendered. This was according to their theory of the case, that the action was based on a contract and not upon the account. Plaintiff, in its answer brief, contended that the action was not based upon contract, but "upon the verified itemized account in the same sense as an account for goods, wares, and merchandise," and the account is copied in the brief with verification as same appears in the first amended petition. There was no reply brief, and under this state of the record, as the same was presented by the parties, the writer of the former opinion, without examining the record, understood that the account sued on was verified and adopted this theory in writing the opinion.
¶3 Defendants, in their petition for rehearing, object to the opinion and call attention to the fact that the court was in error in holding that the account attached to the second amended petition was verified, when in fact it was not verified, and we find this to be true. However, under the status of the briefs, we do not think defendants are in a position to complain in the petition for rehearing.
¶4 We are glad to make the correction, but we do not see where this correction is of any assistance to defendants. In the trial of the case plaintiff introduced its itemized account and proved its correctness by the witness James A. Arnold, who was manager of the office and was acquainted with the record of the account, and while defendants introduced evidence on the issues as to the manner of the work done and the warranty they claimed, they did not deny the correctness of the items or work and labor and materials or prices stated in the itemized account.
¶5 Defendants introduced evidence to show what the contract was, and that the work was not done as agreed upon; that the repairs were to be made to prevent leakage and the leaks were not prevented and the oil ran out and defendants were damaged. Plaintiff denied the evidence as to warranting that the repairs would be made to prevent leakage, and...
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Gladys Belle Oil Co. v. Clark
...may raise the issue by a general denial." ¶24 The burden was upon the plaintiff to establish its case. Parmenter, Trustee v. Douglass Tank Co., 115 Okla. 193, 241 P. 471; Black v. Wickett, supra. ¶25 The president of the Stebbins Oil & Gasoline Company testified, and it is not denied, that ......
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...v. Studt, 51 Okla. 388, 151 P. 1066; Combs v. Langston Investment Co., 100 Okla. 21, 227 P. 94; Parmenter, Trustee, et al. v. Douglass Tank Co., 115 Okla. 193, 241 P. 471; Simons v. Harber, 116 Okla. 233, 243 P. 510. ¶7 It is unnecessary for us to discuss or refer to cases from other courts......
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...but that they were prepared on machines andalways came through his hands. He was speaking of the invoices. See Parmenter v. Douglass Tank Co., 115 Okla. 193, 241 P. 471, wherein the court considered as competent to testify concerning the correctness of an account or statement of this charac......
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...not the defendant introduced any evidence. See Burford et al. v. Richards & Conover Hdwe. Co., supra; Parmenter, Trustee, et al. v. Douglass Tank Co., 115 Okla. 193, 241 P. 471. Although in the last-cited case, we said that "any testimony tending to show that the items of the account are co......