211 P. 316 | Mont. | 1922
prepared the opinion for the court.
Plaintiff brings this action for the purpose of recovering upon an alleged account stated for moneys due the plaintiff, by reason of professional services rendered in the capacity of an attorney at law for Rachel E. Williams as the administratrix of the estate of Henry Williams, deceased. The action is brought against Sibyl Scott as the administratrix of the estate of Rachel E. Williams, deceased, and it is admitted in the pleadings that the defendant is the administratrix of the estate of Rachel E. Williams, deceased.
The complaint alleges, in substance, that the plaintiff is an attorney at law, duly licensed to practice as such in the courts of the state of Montana; that Rachel E. Williams was from the twelfth day of August, 1905, to the twelfth day of August, 1906, the duly appointed, qualified and acting administratrix of the estate of Henry Williams, deceased; that during this period of time last above noted the plaintiff performed services as such attorney at law for Rachel E. Williams, as such administratrix; that Rachel E. Williams as such administratrix agreed to pay to the plaintiff the sum of $1,800, or that portion thereof which the judge of the district court in which the estate was then pending, should approve; that such administratrix made her fourth annual accounting to the court, in
It is further alleged that upon the approval of the account so filed by such administratrix that Rachel E. Williams became indebted to this plaintiff in the sum of $1,800, no part of which has been paid. It is further alleged that Rachel E. Williams died in March, 1907; that defendant herein was duly appointed as the administratrix of the estate of Rachel E. Williams, and is now acting as such; that a claim was duly filed,with the defendant as such administratrix, for the sum of $1,800, which claim was rejected by the administratrix; that attached to the claim so filed was a copy of the decree of the court, settling and allowing the account of Rachel E. Williams as administratrix.
The defendant answered, admitting that the defendant is the administratrix of the estate of Rachel E. Williams; admitting the presentation of the claim, and' that there was attached to it a copy of the decree of the court approving such account, and also admitting that the claim was rejected. The answer alleges that the plaintiff was fully paid for all of the services upon which this claim is based, and denies all of the other allegations of the complaint. The reply puts in issue all of the affirmative matter set forth in the answer. The cause was tried to a jury and verdict rendered favorable to defendant, and judgment entered thereon. Plaintiff thereafter duly filed his motion for a new trial, which was overruled. These appeals are from the judgment and order overruling plaintiff’s motion for a new trial.
The evidence introduced was in part documentary and in part oral. The documentary evidence consisted of the following matter: (a) The order appointing Rachel E. Williams as the administratrix of the estate of Henry Williams, and is dated August 11, 1902; (b) the letters of .administration granted to Rachel E. Williams in the estate last above men
The creditor’s claim, filed by the plaintiff with the defendant as administratrix, is in the 'usual form, and the item herein claimed of $1,800, together with other items therein enumerated, is therein set forth.
The oral testimony consisted of that given by the plaintiff himself and was in part as follows: That he is, and at all the
The defendant did not cross-examine any of the witnesses who testified in behalf of plaintiff; neither did the defendant offer any testimony whatsoever in her behalf.
In so far as the record before this court discloses, there were no objections made to any of the instructions given. In instructions numbered 4, 5, 6 and 7, the jury were told:
Instruction No. 4: “The court instructs the jury that if a duly appointed and acting administratrix of an estate subscribes and verifies by her affidavit an account in writing, which states that a certain sum of money is due, or is owed, on account, to another person, for services rendered, or valuable things furnished, by such other person, to or for or on behalf of the person who subscribed and verified said account, in and about her administration of said estate, and in cases in courts wherein she was a party as such administratrix, then that account as to such item of indebtedness stated therein is in law an account stated; and an account so stated also implies, as a matter of law, a promise on the part of the person who subscribed their name thereto, to pay the amount therein stated to be due, when allowed by the court, in case such account states that the amount therein stated to be due is subject to allowance of the court.
“The court further instructs you that in prosecuting a suit to enforce payment of the amount stated as due in an account stated as defined in this instruction, it is not necessary, nor is it proper, for the creditor to introduce evidence in addition to what is shown in such account stated, as to the items, or
“The court further instructs the jury that if the administratrix of an estate in her account and report, made in writing to the court having jurisdiction of said estate and the administration thereof, states that a certain sum of money is due to a person, subject to allowance of the court, for certain services rendered as attorney on behalf of said administratrix in and about the administration of said estate, and in court actions wherein said administratrix was a party, then the sum so stated to be due, subject to allowance of the court, is not. matured for payment, nor enforceable, until the court, to which such account and report is made, has, by its judgment,order, or decree, allowed the same. ’ ’
Instruction No. 5: “The court instructs the jury as a matter of law, that if the jury believes from a preponderance of the evidence introduced on this trial, that Rachel E. Williams, as the duly appointed and acting administratrix of the estate of Henry Williams, deceased, in the year 1906, subscribed her name to, and verified by her affidavit, an account and report to this court in writing, of her administration of that estate, during a certain period of time; and that said account and -report contains a statement in writing to the effect that a certain sum of money was due to plaintiff in this case, subject to allowance of the court, for services and counsel rendered by plaintiff during a certain period of time as attorney on behalf of said estate of Henry Williams, deceased, in and about the administration thereof, while said Rachel E. Williams was acting as said administratrix, and in cases in the courts wdierein she was a party as said administratrix, then the plaintiff, in this action to enforce payment of the sum so stated to be due him, is not obliged to, nor is it necessary or proper for the plaintiff to, prove or show by evidence, beyond or in addition to what is stated in said account, the character or items of services and counsel rendered by him as said attorney, or the value of said counsel and services for which the
“But before plaintiff is entitled to a verdict for recovery of such alleged indebtedness, he must show by proper evidence that the court to which said account and report' was made, by its order, judgment or decree, allowed the amount of the alleged indebtedness mentioned in such account, which plaintiff seeks to recover by this action; and that no payment thereof, nor any part thereof, has been made.”
Instruction No. 6: “The court instructs the jury that the judgments, orders, and decrees of this court, made upon the hearing, settlement, and allowance of the account and report of the administratrix of an estate, showing the court’s rulings and orders in regard thereto, are made and recorded in writing; that the contents of any such order, judgment, or decree, when used as evidence in the trial of a subsequent action or proceeding, may be shown by introducing and reading -in evidence the record of such judgment, order or decree, or a duly authenticated copy thereof; and that when so introduced, received, and read in evidence, the contents of such judgment, order, or decree is entitled to and must be given full faith and credit by the court and jury, as evidence, in so- far as the same is pertinent and applicable to any matter of fact to be shown in evidence and considered on the trial of such» subsequent action or proceeding.”
Instruction No. 7: “ The court further instructs the jury that if you find from a preponderance of the evidence introduced on this trial that Rachel E. Williams, as the duly appointed and acting administratrix of the estate of Henry Williams, deceased, in the year 1906, subscribed her name to, and verified by her affidavit, her fourth annual account and report to this court in writing, of her administration of said estate during a certain period of time, and that said account and report contains a statement to the effect that the sum of $1,800 was due to plaintiff in this case, subject to allowance of the court, for service and counsel rendered by plaintiff as attorney on behalf of said estate and Rachel E. Williams as said adminis
Of the several specifications of error, we deem it necessary to consider but one, namely: Is the verdict against or contrary to the law? A careful examination of instructions numbered 4, 5, 6 and 7, above noted, with a like examination of the evidence hereinbefore set forth, discloses that this evidence fully meets all of the requirements set forth in these instructions.
As above noted, no objections were made to any of these instructions. Therefore, right or wrong, they became the law of this case. (Wallace v. Weaver, 47 Mont. 437, 133 Pac. 1099, and cases therein cited.)
Since the evidence fully meets the requirements of the law as laid down in these instructions, and since this evidence is uncontradicted, it follows that the verdict is against the law, unless it can be said that some essential part of the evidence is inherently improbable, for “juries may not arbitrarily and capriciously disregard testimony of witnesses, not only unimpeached in any of the usual modes known to the law, but
The question whether or not the instructions given correctly state the law is not now before this court, and we therefore do not express any opinion thereon. However, since this cause must be remanded for a new trial, we direct the trial court’s attention to the case of Martin v. Heinze, reported in 31 Mont. 68, 77 Pac. 427, wherein an account stated is defined.
We recommend that the judgment and order appealed from be reversed and the cause remanded to the district court of' Silver Bow county for a new trial.
Reversed and remanded.