Sarvis v. Childs Bond & Mortgage Co.

• Citation: 49 Idaho 79,286 P. 914
• Decision Date: 20 March 1930
• Docket Number: 5366
• Parties: C. J. SARVIS, Respondent, v. CHILDS BOND AND MORTGAGE COMPANY, a Corporation, Appellant
• Court: United States State Supreme Court of Idaho

286 P. 914

49 Idaho 79

C. J. SARVIS, Respondent, v. CHILDS BOND AND MORTGAGE COMPANY, a Corporation, Appellant

No. 5366

Supreme Court of Idaho

March 20, 1930

PLEADING AND PROOF - VARIATION, WHEN DISREGARDED-CONTRACT OF EMPLOYMENT-VALUE OF SERVICES-QUANTUM MERUIT-FINDINGS OF REFEREE.

1. Where referee in action to recover compensation for services rendered found that there was oral contract for performance of certain services supplemented by other oral conversations and understandings, such finding, though uncertain and indefinite, was a positive ascertainment that plaintiff had performed services for defendant at latter's instance and request, rendering a more specific finding unnecessary and opening field to quantum meruit, save where, in particular instance, some item may have rested in special agreement.

2. Where pleadings and evidence in action to recover compensation for services rendered established oral contract for performance of services, referee could only deal with each item in dispute separately and decide each item as affected by conversations, undertakings and agreements between parties.

3. In action to recover compensation for services rendered evidence held sufficient to establish item for additional mileage on automobile used by plaintiff in performance of services in accordance with understanding.

4. Where in action to recover compensation for services rendered there was no objection to introduction of particular evidence as to certain item, original complaint will be deemed amended to conform to proof in respect thereto.

5. Where employer credited representative for certain services by a book entry in respect thereto, referee in determining right of recovery for item properly took such entry as presumptive evidence of what service was reasonably worth.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action to recover compensation for services rendered. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

C. S Hunter and Frank T. Wyman, for Appellant.

Where the testimony in the court below was taken before a referee, the supreme court will pass upon its weight and credibility, even in the presence of conflict. (Jackson v. Cowan, 33 Idaho 525, 196 P. 216; In re Rexburg Investment Co., 36 Idaho 552, 211 P. 552; McKenzie v. Miller, 35 Idaho 354, 206 P. 505; Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Roby v. Roby, 10 Idaho 139, 77 P. 213.)

P. E. Cavaney, for Respondent.

The action at bar is an action in equity and involves an accounting between the respondent and appellant and covered a considerable period of time and involved many intricate items. In such an action it was not necessary for the referee to find the facts proved as to each item of the bill of particulars, but sufficient if the debit and credit items are stated.

In Pratalongo v. Larko, 47 Cal. 378, at page 383, the court said:

"Where the controversy relates to the settlement of long standing account running through a period of several years and consisting of numerous items on both sides of it, if the referee was required to find the facts proved in respect to each separate item the record in a majority of cases would be encumbered with a mass of useless matter greatly enhancing the expense of the litigation and producing unnecessary delay and inconvenience. . . . In such a case if the items on the debit and credit side are intelligently stated by the referee so that on the face of the report it clearly appears how the indebtedness arose this we think is a sufficient compliance with the statutes in this class of cases."

In the case at bar it was only necessary for the referee to follow the pleadings.

In Murdock v. Clarke, 90 Cal. 427, 27 P. 275, the court said:

"It was not necessary for the findings of fact to give the items of the account. It is not necessary in pleading to give an itemized account (Code Civil Proc., sec. 454) and a finding which follows the pleading is sufficient. In this case as in other cases it is sufficient to find the ultimate facts or secondary facts from which the ultimate facts necessarily follow." (See, also, Jacobs v. Ludemann, 137 Cal. 176, 69 P. 965.)

LEE, J. Givens, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

LEE, J.

C. J. Sarvis, plaintiff and respondent, plead that on or about March 1, 1924, he entered into a verbal contract of employment with defendant and appellant, Childs Bond & Mortgage Co., under the terms of which contract, "among other things," the plaintiff "was to purchase and sell bonds and securities of divers sorts, obtain fiscal agent's contracts for various bond issues, do and transact other business for and on behalf of said defendant, and incur expenses in connection therewith which defendant agreed to pay plaintiff therefor, such as railroad fare, bus fare, Pullman berth, auto hire, hotel bills, meals, telephone and telegraph, postage, insurance and such other incidental and necessary expenses in order to carry out the purposes of said plaintiff's employment; and, as part compensation for plaintiff's services, plaintiff was to receive from defendant a reasonable compensation for his time involved in connection with the specific bond issues on which plaintiff's time was employed"; that pursuant to such agreement plaintiff entered into such employment on or about said date and performed services more particularly set out in a bill of particulars attached to his complaint; that later, on or about May 12, 1924, the parties entered into a further agreement "supplementing said original contract only in the particulars that the plaintiff should be paid five cents per mile for automobile mileage incurred by plaintiff on behalf of defendant's business, which amount was to be periodically, as at the end of the year, or upon the sale of the said automobile, adjusted to the ascertained actual total cost per mile through which said automobile was operated; that again, on or about July 12, 1924, the preceding agreements were further supplemented by an additional contract providing:

"That the said plaintiff should devote as much time as plaintiff desired to defendant's business, and that on all bond issues purchased by the said plaintiff and/or secured by defendant as a result of plaintiff's efforts and on all fiscal agent's contracts procured for defendant by plaintiff and/or obtained through plaintiff's efforts, plaintiff would receive one-half of the net profits due defendant remaining after deducting all expenses incurred in connection with said bond issue or fiscal agent's contracts, and including defendant's actual stenographic expenses incurred in relation to said bond issue, the cost of legal services in connection with said bond issue, printing of said bonds, stationery expenses, postage, insurance on bonds, telegraph or telephone expenses in connection with said bond issue, traveling expense of said defendant or plaintiff in connection with said bond issue or any other necessary or incidental expense incurred in connection with the said particular bond issue or fiscal agent's contract, but not including any of defendant's overhead expenses of defendant's office, or any charge for time of either said defendant or said plaintiff in connection with said particular bond issue. That said plaintiff was to receive for the sale of bond issues, not purchased by said plaintiff, such commission as would be decided upon by the respective parties at the time of offering said specific bond issue involved for sale. But that in case of the purchaser coming to the defendant's office to purchase said security subsequent to having been called upon by plaintiff, said plaintiff was to receive such commission as might be mutually agreed upon by the said plaintiff, and said defendant on or about the date of such sale.

"That the said plaintiff would be reimbursed for all necessary expenses incurred when buying or selling or attempting to buy or sell securities for defendant or when the said defendant was otherwise discharging the business of said defendant. Said expense to be reimbursed promptly or credited to the said plaintiff's account upon the sale of the particular bond issue to which charged, and if not so charged to said issues, or any issues that plaintiff was to be reimbursed for such expenses by defendant.

"That for any special service not on bond issues purchased by defendant involving plaintiff's definite time expenditure plaintiff was to receive from defendant not less than $ 10.00 per day for each and every day so employed. That said plaintiff was to be further reimbursed for other services in connection with defendant's business out of the net yearly profits that said defendant would realize at the end of each year during the period which the plaintiff was employed for defendant, in an amount, at said time, to be mutually agreed upon by the respective parties."

That plaintiff continuously performed services under said contracts until July 26, 1926, but that defendant failed and refused to account to him in full, and was indebted in a balance sum of $ 2,596.92, for which sum he prayed judgment together with seven per cent per annum interest from said date. There was an attached bill of particulars setting out the services claimed under the respective agreements.

Defendant admitted plaintiff's employment under the first contract denied that the terms of employment were such as plaintiff alleged, but admitted that plaintiff was to receive compensation for his services, and averred that he had been fully paid for all services rendered. Of defendant's version of the...