Schick v. Watts

• Decision Date: 16 September 1908
• Docket Number: 15,281
• Citation: 117 N.W. 705,82 Neb. 359
• Parties: LANDIS & SCHICK, APPELLANTS, v. GEORGE WATTS, APPELLEE. [*]
• Court: Nebraska Supreme Court

117 N.W. 705

82 Neb. 359

LANDIS & SCHICK, APPELLANTS, v. GEORGE WATTS, APPELLEE. ^[*]

No. 15,281

Supreme Court of Nebraska

September 16, 1908

APPEAL from the district court for Seward county: BENJAMIN F. GOOD JUDGE. Affirmed.

AFFIRMED.

T. L Norval, Ray J. Abbott and C. A. Robbins, for appellants.

M. D Carey, contra.

ROOT, C. FAWCETT and CALKINS, CC., concur.

OPINION

ROOT, C.

Action on an alleged account stated in settlement for attorney fees. Defendant prevailed, and plaintiffs appeal. Shortly after the termination of the litigation wherein plaintiffs appeared for defendant, he paid them $ 100, and they claim that he then agreed to pay $ 125 additional in settlement of their account. Defendant denies making the promise, and says that he paid plaintiffs more than their services were worth, and all that he intends to pay.

1. Error is predicated on the admission of testimony tending to prove the value of plaintiffs' services. The court instructed the jury that said testimony should be considered solely for the purpose of determining whether an account was stated between the parties, and that, if such a settlement had been made, it was immaterial whether or not their services were worth the sum claimed. We are of opinion that the testimony was admissible. The testimony concerning the settlement was conflicting, and any evidence that would reasonably tend to establish the probability or improbability of the fact in issue was properly admitted. Shepherd v. Lincoln Traction Co., 79 Neb. 834, 113 N.W. 627; Farmers' State Bank v. Yenney, 73 Neb. 338, 102 N.W. 617; Blomgren v. Anderson, 48 Neb. 240, 67 N.W. 186; Lincoln Vitrified Paving & Pressed Brick Co. v. Buckner, 39 Neb. 83, 57 N.W. 749. If the jurors believed that the services rendered were not worth more than $ 50 to $ 100, they would be justified in considering that an agreement to pay more than twice that sum was unreasonable and improbable.

2. That the hypothetical questions do not fairly reflect the evidence. The questions are not models, but they present generally defendant's testimony as to the scope of the services to be performed and actually rendered by plaintiffs, and we are of opinion that the answers thereto did not mislead the jury. Moreover, two at least of the witnesses had actual knowledge of the greater part of the work performed by plaintiffs for defendant, and the court did not commit reversible error in admitting the testimony. Morrill v. Tegarden, 19 Neb. 534, 26 N.W. 202; Code, sec. 145.

3. That the verdict is contrary to the evidence. The evidence is conflicting, and there are...