Reid v. Topper
| Decision Date | 19 September 1927 |
| Docket Number | Civil 2556 |
| Citation | 32 Ariz. 381,259 P. 397 |
| Parties | J. A. REID and MARY E. REID, Appellants, v. ALBERT TOPPER, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Judgment reversed and cause remanded for new trial.
Mr. L J. Cox, for Appellants.
Mr. H H. Baker, for Appellee.
Albert Topper, hereinafter called plaintiff, filed suit against J A. Reid and Mary E. Reid, hereinafter called defendants. The substantial allegations of the complaint, so far as necessary for the determination of this case, read as follows:
The complaint ended with an allegation that no part of the $1,620 had been paid, and prayed for judgment against defendants and each of them. Defendants demurred separately on the ground of misjoinder, and that the complaint set up an accord and satisfaction. The demurrers were overruled, and after a motion that plaintiff be compelled to elect between an action on the note and on an account stated was denied, defendants answered with a general denial and a special defense, the material part of which reads as follows:
"Defendants allege that upon the settlement set forth in paragraph three (3) of the amended complaint, in the month of March, 1924, wherein it is averred that an account was stated between plaintiff and defendants, the said account was struck upon misrepresentations of fact made by the plaintiff to the defendants, to wit, that he, the said Albert Topper, had not received one cent for his services for the Harquahala Live Stock Company, and that a certain well known as the Big Horn well was situate upon section 16, township 2, range 8 west, and that he, the said Albert Topper, had deposited to the credit of said company five hundred dollars ($500.00), and that he, the said Topper, had never at any time received or used any moneys from or belonging to the defendants during the time that he, the said Topper, worked for the said defendant, all of which said statements were relied upon by the defendants at the time of the settlement, and the defendants were induced thereby to make said settlement, and that all of said statements were false and known by the plaintiff to be false, and by them believed and by deceit practiced by the plaintiff upon the said defendants at said time, whereby said deceit and said fraudulent representations of fact practiced and made by the plaintiff upon the said defendants, wrongful and untrue accounting and result were arrived at by the parties hereto, and that at said time the said account so arrived at was an untrue, wrongful, and fraudulent account, and that defendants, at said time, did not owe to plaintiff the sum of four thousand six hundred twenty dollars ($4,620.00), nor any sum in excess of the three thousand ($3,000.00) dollars that were then and there paid in cash to plaintiff by the defendants." -- and an allegation that there was an accord and satisfaction and payment by means of the note set up in the complaint.
The matter was tried before a jury, which returned a verdict in favor of plaintiff for the full amount sued for with interest, and after motion for new trial was overruled an appeal was taken.
There are some twelve assignments of error, many of them containing subassignments, which we will consider as seems advisable. It was the position of defendants on the demurrers that the action was brought upon a promissory note signed by J. A. Reid alone, and that Mary E. Reid, therefore, was not a proper party to the action. The conclusion of defendants would be correct if their premise could be sustained, but it is very apparent to us from the portion of the complaint just quoted, that the suit was not on the note, but rather on an account stated, the note being merely evidence of the balance due on such account. The allegations of the complaint are that plaintiff performed services for both defendants at their instance and request, that the account was stated between him and both of them, and that both agreed to pay the balance thereon. Such being the case, Mary E. Reid was undoubtedly a proper party, and the demurrers were properly overruled. Nor do we think the complaint shows an accord and satisfaction. While there are a few states which hold to the contrary, the general rule is that a note given in settlement of an account is not payment thereof, unless it is expressly agreed between the parties that it shall be so accepted. 30 Cyc. 1196. Since there is but one cause of action set up, to wit, for a balance due on an account stated, the court also properly denied defendants' motion for an election. Nor do we think there was error in the admission in evidence of the promissory note. This disposes of the first three assignments of error.
The fourth is that the court erred in certain remarks made in the presence of the jury, and four specific statements by it are set up in the assignment. While it might have been better for the court to have been a little more careful in the use of language, we do not think, in view of all the circumstances connected with these remarks, they can be considered as error -- certainly not to such an extent as to require a reversal of the case.
In discussing the fifth to the ninth assignments, inclusive, we must first determine what were the real issues in the case, and theory on which it was tried, for parties cannot try a case on one theory in the lower court and on another in this one. Tevis v. Ryan, 13 Ariz. 120, 108 P. 461; Id., 233 U.S. 273, 58 L.Ed. 957, 34 S.Ct. 481.
It is now the contention of defendants that in addition to the defenses admissible under their general denial, they had presented, as a special defense, fraud on the part of plaintiff in securing the account stated, and also mistake between the parties as to the true balance, and that therefore they should have been permitted to offer evidence not only on the issue of the alleged fraudulent conduct of plaintiff, but also as to any actual mistake made without fraud, so that the account might be surcharged or falsified, and that the instructions should have followed that theory. It is the claim of plaintiff, on the other hand, that the special defense set up on the pleadings ignores entirely the element of mistake and alleges only general fraudulent conduct on his part of such far-reaching effect that the account could not be surcharged or falsified, but, if defendants' allegations were true, must fall entirely as a stated account. The following colloquy between the court and counsel for defendants shows the theory on which the case was tried:
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Holmes v. Potts
...regarding his assent to the alleged account stated, he may introduce any evidence tending to show he did not so assent.' Reid v. Topper, 32 Ariz. 381, 259 P. 397. Defense that no account was stated may be raised by defendant on general Gordon Stores Co. v. Rubin, 39 N.M. 100, 41 P.2d 276. D......
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...of fact State v. Willits, 96 Ariz. 184, 393 P.2d 274; Wolff v. First Nat. Bank of Winslow, 47 Ariz. 97, 53 P.2d 1077; Reid v. Topper, 32 Ariz. 381, 259 P.2d 397. Instructions are not to be considered separately, but must be taken as a whole. E.g., Newton v. Main, 96 Ariz. 319, 395 P.2d 360.......
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...Mather v. Musselman, 79 Mont. 566, 257 P. 427, which to some extent announced such doctrine and to which may be added Reid v. Topper, 32 Ariz. 381, 259 P. 397, at page 400, the court there 'It is of course the general rule of law that a stated account is not conclusive, but simply affords s......
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...be drawn from the evidence and instruct the jury as to which inferences they should adopt. See ARS Const. Art. 6, § 27; Reid v. Topper, 32 Ariz. 381, 259 P. 397 (1927). The state argues that the jury was properly instructed regarding the element of specific intent and that when the instruct......