Taylor v. Hall

• Decision Date: 23 December 1902
• Citation: 8 Idaho 757,71 P. 116
• Parties: TAYLOR v. HALL
• Court: Idaho Supreme Court

71 P. 116

8 Idaho 757

TAYLOR v. HALL

Supreme Court of Idaho

December 23, 1902

EVIDENCE-NEW TRIAL.-Where the evidence shows that the verdict of the jury and the judgment of the court based thereon is excessive, a new trial will be awarded.

ACCOUNT STATED.-Where the pleadings do not aver an account stated or final settlement, that question cannot be raised for the first time in this court.

(Syllabus by the court.)

APPEAL from District Court of Ada County.

Reversed and remanded. Costs to appellant.

Richards & Haga, for Appellant.

We desire to call the court's attention to the fact that the verdict is against the law. Respondent, at the close of his testimony in chief, introduced a voucher (Plaintiff's Exhibit "A"), which shows on its face: (a) That it was given "for account and amount as per original bills duly approved, filed in auditor's office"; (b) That the original bill for which it was given consisted of "Chief engineer's final estimate (3) of work done between stations 456 and 479, Pacific and Idaho Northern Railway Construction, completed and accepted December 9 1899"; (c) That it had been examined and found correct by Charles D. Moore, the chief engineer of the railroad company, and A. Hermany, auditor for appellant; (d) That on the sixteenth day of January, 1800, there was balance due respondent for work done between said stations of $ 1,958.09 (e) That on the twenty-sixth day of January, 1900, respondent accepted said sum of $ 1,958.09 in full for the balance due him from appellant for work done between stations 456 and 479. Counsel for respondent may contend that it is not a receipt in full of all demands. We admit that it is not, but we do insist that it is, and appears on its face to be, in full of the account existing between respondent and appellant on the twenty-sixth day of January, 1900, for work done between stations 456 and 479, on the Pacific and Idaho Northern Railway, completed and accepted December 9, 1899. On its face it is a complete discharge of the demand growing out of the work done between stations 456 and 479, and unless it was obtained under such circumstances of mistake, accident, surprise or fraud, as would authorize a court of equity to set it aside, it operates to defeat any further claim for the debt. (Aborn v. Rathbone, 54 Conn. 446; Chicago etc. Ry. Co. v. Mills (Colo. App.), 69 P. 317.) It is conclusive when given with a knowledge of all the circumstances, and when a party giving it cannot complain of any misapprehension as to the compromise he was making. (Hurd v. Blockman, 19 Conn. 177; Beam v. Barnum, 21 Conn. 200; Bonnell v. Chamberlain, 26 Conn. 487; Holbrook v. Blodget, 5 Vt. 520; Guldager v. Rockwell, 14 Colo. 459, 24 P. 556; Thompson v. Faussat, Pet. C. C. 182, F. Cas. No. 13,954.) Assuming for the sake of argument that the voucher in question is but an ordinary receipt, the verdict is still against the law, for it is well settled that a written receipt is evidence of high character. It is prima facie evidence of the truth of the recitals which it contains. It is evidence of so satisfactory a character as not to be overcome except by clear and convincing testimony. And when the receipt contains no general or vague expressions, but all is definitely descriptive of what is intended to be affected by it, such a receipt, like other writings in general, must not be assailed by parol testimony unless on the ground of fraud. (2 Jones on Evidence, 503; Raymond v. Roberts, 2 Aik. (Vt.) 204, 16 Am. Dec. 698; Riley v. Mayor etc., 96 N.Y. 331; Springfield etc. R. R. Co. v. Allen, 46 Ark. 217; Fuller v. Crittenden, 9 Conn. 400.) The authorities are uniform that oral evidence is inadmissible to vary a receipt that partakes of the nature of a contract. (Jackson v. Ely, 57 Ohio St. 450, 49 N.E. 792; Cassilly v. Cassilly, 57 Ohio St. 582, 49 N.E. 795; Church of Holy Communion v. Paterson Extension R. Co., 63 N.J.L. 470, 43 A. 696; Pratt v. Castle, 91 Mich. 484, 487, 52 N.W. 52.)

John J. Blake and C. C. Cavanah, for Respondent.

As a legal proposition, we do not think that there can be any doubt that the receipt in question is not a contract, but is simply an ordinary receipt, and as such is not conclusive, but is subject to explanation by parol testimony. The authorities on this question are numerous, and so well established has the rule become that a receipt of the character of the one in the case at bar is subject to explanation by parol testimony, that the question is no longer open to controversy. We cite the following cases to support our contention on this point, all of which uphold the rule that a receipt is never conclusive, but is always open to explanation by parol testimony: Simmons v. Oullahan, 75 Cal. 508, 17 P. 543; Hawley v. Bader, 15 Cal. 45; Comptoir d'Escompte de Paris v. Dresbach, 78 Cal. 15, 20 P. 28; Ireland v. Spickland, 95 Mo.App. 53, 68 S.W. 748; Hardin v. Dickey, 123 Cal. 513, 56 P. 258; Selover on Bank Collections, 193; Jones on Evidence, secs. 67, 502, and cases cited. We believe that the record shows beyond doubt that there is a substantial conflict in the evidence, and this being true, we insist, under the authorities, that this court should not disturb the verdict of the jury in this case. On the point that the finding of a court or the verdict of a jury will not be disturbed where there is a substantial conflict in the evidence, we cite the following cases: Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711; Spaulding v. Coeur d'Alene Ry. & Nav. Co., 5 Idaho 528, 51 P. 408; Sears v. Flodstrom, 5 Idaho 314, 49 P. 11; Moore v. Copp, 119 Cal. 429, 51 P. 630; Gibson v. Sterling Furniture Co., 113 Cal. 1, 45 P. 5; Coffin v. Bradbury, 3 Idaho 770, 35 P. 715; Ketcham v. Barbour, 102 Ind. 576, 26 N.E. 127.

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

Facts are fully stated in the opinion.

STOCKSLAGER, J.

This case is here on appeal from the district court of Ada county. A jury trial was had, a verdict in favor of the plaintiff rendered, and judgment entered according to the finding of the jury. The appeal is from the judgment, and also from an order overruling a motion for a new trial.

By reason of the conclusions reached in this case, we find it necessary to set out the following allegations of the complaint: That between the seventh day of September, 1899, and the seventh day of December, 1899 plaintiff performed services for the defendant, at his special instance and request, in the capacity of a contractor in constructing the roadbed of the Pacific and Idaho Northern Railway Company, in the county of Washington and state of Idaho for which services defendant agreed to pay plaintiff the sum of $ 5,416.54; that defendant has not paid the same nor any part thereof, except the sum of $ 4,673.07. For a second separate cause of action, plaintiff complains and alleges that between the seventh day of September, 1899, and the 7th of December, 1899, plaintiff performed services for the defendant, at his special instance and request, in the capacity of a...