Baker v. Griffin, 43 Misc. 1

43 Misc. 1 | N.Y. App. Term. | 1904

Gildersleeve, J.

The complaint in this action alleges that, on or about ¡November 19, 1902, an account was stated between the plaintiff and defendant, in which it was agreed that there was due to the plaintiff $15, as a balance for services in drawing a contract, and $240 as commissions for services rendered, amounting in all to the sum of $255, which sum defendant then and there agreed to pay, but has never paid any part thereof. The answer is a general denial. The jury found for the plaintiff in the full amount claimed. Defendant appeals.

As the case on appeal has no certificate stating that it contains all the evidence taken upon the trial, the appellate court will not enter into an examination of the facts presented by the testimony. Such a certificate, however, is not essential in an action tried by a jury, to authorize the appellate court to review the exceptions to the rulings of the trial justice. Rosenstein v. Fox, 150 N. Y. 354.

The well-accepted rule that an account stated can only be attacked for fraud, mistake or manifest error does not apply in a case where the existence of such account stated is denied. Kaminsky v. Mendelson, 25 Misc. Rep. 500. Under the answer of a general denial, although the defendant cannot prove any affirmative defense, he is entitled to controvert and deny the proof of the plaintiff, and also to introduce any evidence which controverts the facts which the plaintiff is bound to prove in order to sustain his action. Ensign v. Hooker, 6 App. Div. 425.

In the case at bar, the plaintiff was bound to prove that an account had been stated. The existence of the account stated was put in issue. It was competent for the defendant to prove payment of the items upon which plaintiff’s claim was based; and also competent to introduce proof tending to show that the transaction, out of which plaintiff alleged he became érititled to the item of $240 for services rendered; had never been completed. Any facts and circumstances which would tend to show the inherent improbability of the defendant’s having agreed to the account were competent and material. Such proof would support the defendant’s contention that there never was an account stated. Coffee v. Williams, 103 Cal. 550.

Upon the trial the plaintiff testified that the parties “ talked over the amount that was due from each of us, and reached a conclusion, which was $255, which he owed me as a Balance. He promised to pay it, but has not paid any part of it.” On cross-examination, he testified: “ In my complaint I state there is due me for drawing a contract for the defendant in July, 1901, a balance of $15, and a balance of $240, as commission for services rendered.” Q. “ State what those services were.” Objection by plaintiff. Sustained. Exception. Q. “ Do you know Messrs. Dehli and Holst ? A. “ Yes.” Q. “Are you not aware that the transaction with Dehli and Holst, on which your complaint is based in this action, was one in which the defendant failed to sell the stock on which you claim the commission?” Objection. Sustained. Exception. Q. “ Mr. Griffin (defendant) paid you ten dollars in the early part of ¡November, didn’t he, on this account?” Objection. Sustained. Exception.

It will thus be seen that defendant’s counsel was not allowed to identify the services or ascertain from plaintiff the character of the services for which plaintiff claimed the sum of $240, as commissions, and also whether or not the sum of $10 had been paid upon the account, upon which plaintiff sues, prior to the time of the alleged accounting between the parties.

The defendant was allowed to give full details as to the conversation with plaintiff at which the alleged account was stated, and, in doing so, he denies that any account was stated, and alleges that he told plaintiff he owed him nothing and would pay him nothing. He then goes on to describe the nature of the plaintiff’s claims for commissions and to show how plaintiff was not entitled to'the same. This testimony is uncontradicted. The jury, however, believed the plaintiff’s allegation that an account had been stated, and so found, as we have seen, by their verdict. The defendant, however, did not testify as to the nature of plaintiff’s claim for the fifteen dollars balance for services in drawing a contract, as alleged in the complaint, but at the end of defendant’s testimony his attorney said: “ ¡Now unless your honor will permit us to go into the account and show that the alleged services were not rendered, we will rest.” The court replied: “ I have already-ruled on that.” The defendant’s attorney rejoined: “ Then I move to dismiss the complaint.” This motion was denied and an exception taken. It appears, therefore, that no exception was taken to this last refusal of the court to permit-defendant to go into the account. However, the previous rulings upon this subject, to which exceptions were duly taken, sufficiently raise the question as to the admissibility of such testimony. We are of opinion that the evidence here sought was competent.

While it is true that the defendant, under guise of giving the conversation with plaintiff, was permitted to lay before the jury the details of plaintiff’s claim for commissions and to show the unreasonableness of such a claim, it must, nevertheless, be said that the defendant was prejudiced by the refusal of the court to allow his counsel to examine plaintiff as to the nature of the claim, for it is obvious that, had plaintiff testified to the same effect as defendant on this subject, such testimony would have had some influence upon the jury. Moreover the' refusal of the court to permit testimony as to the payment of ten dollars on the account was clearly prejudicial to defendant. Kaminsky v. Mendelson, supra.

For the above errors in the rulings of the court below, the judgment and order must be reversed, and a new trial granted, with costs to appellant to abide the event.

Freedmaw, P. J., and Greewbatjm, J., concur.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event.