Quinn v. White

• Decision Date: 10 December 1900
• Docket Number: 1,587.
• Citation: 62 P. 995,26 Nev. 42
• Parties: QUINN v. WHITE
• Court: Nevada Supreme Court

62 P. 995

26 Nev. 42

QUINN v. WHITE

No. 1,587.

Supreme Court of Nevada

December 10, 1900

Appeal from district court, Washoe county; B. F. Curler, Judge.

Action by John J. Quinn against Albert White. There was a judgment for plaintiff, and from an order granting a new trial he appeals. Reversed.

Thomas E. Haydon, for appellant.

Wren & Julien and A. E. Cheney, for respondent.

BELKNAP J.

The action was upon an alleged account stated. In April, 1896 plaintiff leased defendant the Arcade Hotel, at Reno. Defendant was financially embarrassed, and property that he might acquire would be subject to process by his creditors. To avoid this, it was agreed that plaintiff, in his own name and with his own funds, should purchase and keep in his possession and under his control the necessary supplies to be used by defendant in the business of the hotel, to be paid for out of the receipts of the business, after deducting certain mentioned expenses. In pursuance of this plan plaintiff from time to time purchased supplies, storing them in a cellar of the hotel, of which he kept the key, and defendant used them as the business required. Upon January 23, 1899, plaintiff gave to defendant a statement containing the monetary transactions between them down to January 1 1899, showing an indebtedness of $1,224.51. Of this amount $838.26 was for supplies furnished by San Francisco merchants, itemizing the amount due each, and $386.25 for balance of rent of hotel, and supplies furnished by plaintiff himself. It was shown that plaintiff kept defendant's books, that the account of each creditor was separately kept therein, and that similar statements of accounts to the one in suit, showing from time to time different balances, had been delivered to defendant. In reference to the account, plaintiff testified: "Q. Who is the person charged? A. I made it that way to show him [defendant] what was due for liquors, but it was due me. I was owing the firms. I simply did that so that he could keep track of his business,--know when he got liquors and what he paid for them. Q. Does he know who he got them [it] from? A. Yes, sir; every time." About five days afterwards the parties met. Plaintiff testified: "I went up to see Mr. White after I had sent my attorney, Judge Haydon, and I agreed to let him have the hotel, and on that I went to his room. He told me, in bed, then, that if I would give him a day or two he would secure me the amount, $1,224.51, and pay me the rent sum in advance thereafter, and that he would like to keep the hotel. I accepted his proposition, and that is all. In regard to the statement, he proposed to settle it in not more than two days. He did not comply with his agreement, and the negotiations failed." There was other testimony, but in our view these were the controlling facts. A jury returned a verdict in favor of plaintiff. A new trial was allowed, and from the order plaintiff appeals.

An account stated may not be in writing, and, if in writing, its form is immaterial. Watkins v. Ford, 69 Mich. 362 37 N.W. 300. It was not necessary to have proven an express agreement to it. It may be implied from circumstances. Lockwood v. Thorne, 18 N.Y. 290. No objection was made to any item, and when defendant promised to secure its payment the...