164 N.W. 58 | S.D. | 1917
This action was brought to recover upon an account the value of certain services performed by plaintiff as a physician and surgeon in treating and earing for a minor son of defendant, who had received an injury by coming in contact with an electric light wire. Plaintiff alleged that such services were performed upon the express request of defendant and were reasonably worth $9,400. Defendant admitted that the services were performed upon his request, and alleged that the same were worth not to exceed1 $350. The jury returned a verdict in favor of plaintiff for the sum of $3,091.40, including interest. From an order overruling a motion for a new trial, and the judgment rendered, on said verdict, defendant appeals.
“The true principle, which is based on the sense of justice in the -business community and on our statute, 'is that he who retains money which he ought to pay to another should be charged interest upon it. The difficulty is that it -cannot well be said- one ought to pay money, unless he can ascertain how much he ought to pay with reasonable exactness. Mere difference of opinion as to the amount is, however, no more a reason to excuse •him from interest than, difference of opinion whether he legally ought to pay at all, which has never been held' an excuse. When one is held liable, say, on a promissory note', to which his defense has raised a doubtful question of law, he must pay the interest with it, because, theoretically at least, there was a fixed standard of legal obligation, which, if correctly applied, would have made his duty clear. So, .if there be a reasonably certain standard of measurement, by the correct application of which one can ascertain the amount he owes, he should equally be held1 responsible for making such application correctly, and liable for interest if he does not.”
In the case of Swinnerton v. Argonaut Land Co., 112 Cal. 375, 44 Pac. 719, the Supreme Court of California, under an identical statute, said:
“The allowance of interest was error. In an action to recover the reasonable value of services performed by a plaintiff, the amount, character, anid value of which can only be established; by evidence in court, or by an accord between the parties, and which' are not susceptible of ascertainment by computation, or by reference to market rates, the plaintiff is not entitled to- interest prior to verdict and! judgment.”
By computation it appears that the. jury allowed plaintiff, under the instructions, the sum of $2,600, as the value of his services, and allowed him $491.40 interest, making the total verdict of $3,091.40. We are therefore of the view that $491.40 should he eliminated! from- said verdict, and that plaintiff is entitled to recover from defendant the sum of $2,600, with interest thereon at the rate of 7 per cent, per annum from the 21st day of August, 19x5, the date of the verdict.
Appellant has assigned1 as error the insufficiency of the evidence to sustain the verdict, but this assignment was abandoned -in the argument in the brief. All assignments of error have -been considered.
The judgment may be -modified to conform toThis decision, and- as modified, the same is -affirmed, without costs on appeal.