Rinker v. Lauer

• Decision Date: 20 February 1907
• Citation: Rinker v. Lauer, 13 Idaho 163, 88 P. 1057 (Idaho 1907)
• Parties: GEORGE RINKER, Respondent, v. J. A. LAUER, Appellant
• Court: Idaho Supreme Court

88 P. 1057

13 Idaho 163

GEORGE RINKER, Respondent, v. J. A. LAUER, Appellant

Supreme Court of Idaho

February 20, 1907

VERDICT-SUFFICIENCY OF EVIDENCE-INSTRUCTIONS.

1. Held, that the evidence is insufficient to sustain the verdict.

2. Where it is understood between the parties that the defendant should make a settlement and pay a commission man for selling real estate, and also pay all taxes against such real estate and render certain services for the plaintiff, such claims are a valid offset or counterclaim against the promissory notes of the defendant owned by the plaintiff and sued on in the action, and it was error for the court to instruct the jury that the defendant was not entitled to a credit on said notes until he had given the plaintiff a statement of said claim and asked for credit on said notes.

3. Where a promissory note provides for an attorney's fee and suit is brought thereon, the plaintiff is entitled to recover a reasonable attorney's fee, provided the plaintiff recovers judgment on such notes.

4. A reasonable fee for the services rendered is the value of such services.

(Syllabus by the court.)

APPEAL from the District Court of Seventh Judicial District for Canyon County. Hon. Frank J. Smith, Judge.

Action to recover on promissory note. Payment pleaded as a defense. Judgment in favor of plaintiff. Reversed.

Reversed and remanded, with costs in favor of the appellant.

Ira W Kenward, for Appellant.

Each item and claim that the defendant had against the plaintiff was an offset at the date of its creation of so much principal and interest then due on the various notes.

A statement of the claim and the demand for credit has never been necessary to recover. No demand is necessary before bringing an action for the recovery of the price of articles sold and delivered, where the contract itself does not impose that condition. Such a debt is due when the transaction is complete. (1 Cyc., par. C, p. 475, citing Ryors v Prior, 31 Mo.App. 555; Ballew v. Casey, 60 Tex. 573; Low v. Griffin (Tex. Civ. App.), 41 S.W. 73; Foster v. Newbrough, 66 Barb. (N. Y.) 645.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was brought to recover balance claimed to be due on four certain promissory notes for $ 100 each, that bore interest at the rate of eight per cent per annum. The plaintiff prayed for judgment, for the sum of $ 221.51 and an attorney's fee of $ 100.

The answer denies that there is anything due whatever on said notes, and avers that they have been paid in full, and as a further defense a counterclaim, or setoff, is plead against the plaintiff for the sum of $ 100, alleged to have been commission for the sale of certain real estate belonging to the plaintiff and agreed to be paid by him; and as a further defense, counterclaim or setoff, avers that by and with the authority of the plaintiff, the defendant had paid certain taxes due on the land so sold and performed certain labor and services for the plaintiff, at his instance and request, all of the value of $ 117.82, and prays for judgment for whatever may be ascertained to be due him against the plaintiff.

Upon the issues thus made, the cause was tried by the court before a jury, and verdict was returned for $ 193.14 against the defendant and in favor of the plaintiff. A motion for a new trial was denied and the appeal is from the order denying said motion.

The transcript contains the evidence given on the trial, and one of the disputes on the trial was over the payment of $ 218 made by the defendant to the plaintiff, and the payment of a commission of $ 100 for the sale of plaintiff's land, and for the payment of taxes due on said land, and for services rendered by the defendant for the plaintiff.

This action was commenced on the twenty-sixth day of September 1905. The plaintiff admits...