Gunn v. Perseverance Mining & Milling Co.

130 P. 458 | Idaho | 1913

SULLIVAN, J.

— This action was brought to recover from the defendant, the Perseverance Mining & Milling Co., the sum of $1,770, with interest thereon and an attorney’s fee of $200, for services alleged to have been rendered by the plaintiff for the defendant corporation.

The appellant corporation answered, denying many of the allegations of the complaint, and averred as a further defense that there was an accounting between the plaintiff and defendant, and there was found to be due to the defendant a balance of $500, and that said settlement was evidenced by the following writing:

“Flint, Idaho, March 11, 1911.

“On final settlement of all accounts to date between James Gunn and the Perseverance Mining & Milling Co. It is hereto understood and agreed that the full amount due J ames Gunn from the Perseverance Mining & Milling Company is Five Hundred Dollars ($500.00).

“JAMES GUNN.

“Witness:

“H. H. BONNELL.”

The appellant tendered on the trial said sum of $500.

The cause was tried by the court with a jury and the jury rendered a verdict of $1,125, with interest thereon in favor of the plaintiff, and judgment was entered on said verdict. The appeal is from the judgment.

The appellant assigns several errors, which are to the effect that the court erred in entering judgment; that the verdict is against law; that the jury disregarded certain instructions given by the court; that the court erred in giving certain instructions ; that the evidence shows that there was an account stated; that the amount due plaintiff from the defendant was the sum of $500 and no more.

The alleged settlement represented by said writing above quoted was the principal defense made by the appellant. The appellant 'sought to show that at the termination of the employment of plaintiff, Bonnell, the president and general manager of the appellant company, had an accounting and went over the items of debits and credits and ascertained a balance and agreed upon the specific sum of $500 due the plaintiff and that such settlement was conclusive. The respondent’s theory was and is that there was at no time any accounting nor any consideration or settlement of mutual accounts, that no balance was ascertained or agreed upon, and that the instrument relied upon was simply an offer on the part of the plaintiff to accept $500 in settlement of a claim which the jury found was $1,125, and that such offer to accept less than the amount due was without consideration, and the same never having been paid or accepted, was not binding upon the plaintiff. Bonnell testified that when the settlement was made and said writing signed they did not go into any detail, “sort of jumped at it — lumped it off.” The evidence clearly shows that they did not figure over any accounts at all when said alleged settlement was made, but that respondent was disgusted and agreed to whatever Bonnell suggested. There was a sharp conflict in the evidence on practically every proposition involved — in the employment, the performance of service, the value thereof, the alleged settlement — and in all of those controverted questions the jury found in favor of the plaintiff. In said writing there is no promise on the part of the appellant to pay the $500 mentioned therein. ‘

On a review of all of the evidence, we are satisfied there is substantial evidence to support the verdict of the jury. It is clear from all of the evidence that there was no account stated between the parties.

The instructions sufficiently cover the case.

We find no reversible error in the record. The judgment is therefore affirmed. Costs awarded in favor of respondent.

Ailshie, C. J., and Stewart, J., concur.