Warner v. Myrick

• Decision Date: 01 January 1871
• Parties: CHARLES A. WARNER v. NATHAN MYRICK, impleaded, etc.
• Court: Minnesota Supreme Court

Page 81

16 Minn. 81

CHARLES A. WARNER

v. NATHAN MYRICK, impleaded, etc.

Supreme Court of Minnesota.

Appeal by defendant Myrick from an order of the district court, Stearns county, denying a new trial.

Oscar Taylor and C. K. Davis, for appellant.

N. H. Miner and Hays & Kerr, for respondents.

BERRY, J.

The complaint in this case sets up the copartnership of the defendants under the firm name of H. Gager; the performance of certain services by the plaintiff for them as copartners; that the same were reasonably worth $817.42 that an accounting was had between the plaintiff and defendants, as copartners, of and concerning the same, upon which there was found to be due the plaintiff the sum of $817.42, and that an account was stated accordingly, the defendants as partners then and there promising to pay the plaintiff the amount so found to be due him. Myrick, who alone appears to have answered, simply denies each and every allegation, matter, and thing in the complaint contained. The alleged account stated was in the form following:

                                       "SAUK CENTRE, March 24, 1869
                "H. GAGER, Dr
                      "TO C. A. WARNER
                

"1867, November 13. (Here follows four items of account, with prices carried out and footed up to the amount of $817.42.) This is the amount due C. A. Warner, on his train work, 1867.

                       [Signed]                        "H. GAGER."
                

To establish his cause of action it was only necessary for the plaintiff to show the partnership of the defendants; that he had performed services for them as partners; and that an an account had been stated therefor, as alleged in the complaint. 2 Greenl. Ev. §§ 126, 129. Whether or not there was evidence upon all these points sufficient to sustain the judgment we are not called upon to inquire, as it does not appear that the settled case contains all the evidence introduced upon the trial. Barnsback v. Reiner, 8 Minn. 63, (Gil. 37;) Rau v. Minn. Val. R. Co. 13 Minn. 447, (Gil. 407.) This disposes of most of the points made by the appellant.

The appellant further claims that certain testimony offered by him was erroneously rejected. The tendency of the rejected testimony would have been to show that the account contained overcharges, but it would not have tended to show that the plaintiff had not performed services for the defendants to some extent, nor that an account had not been stated. The very purpose of declaring upon an account stated is to save the necessity of proving the correctness of the items composing the same, (Ogden v. Astor, 4 Sandf. 332; 2 Greenl. Ev. 127;) the effect of the account stated being to establish prima facie the accuracy of the items without further proof, and the party seeking to impeach the account is therefore bound to show affirmatively any mistake or error complained of. Lockwood v. Thorne, 18 N. Y. 292. If a party desires to attack the account for mistake or error in the statement of the same, he should apprise his adversary of his intention to do so by specially pleading the incorrectness upon which he relies. A bare general denial of the allegation that an account was stated, raises no proper issue upon the correctness of the account.

Upon the pleadings in this case, then, the testimony offered, as above mentioned, was rightly excluded.

The first instruction given to the jury at plaintiff's request, and excepted to by the defendant, was as follows: "If the jury find that the defendants were jointly interested in the business in which the work and labor charged in the complaint were performed, sharing the profits and losses between...