111 Minn. 63 | Minn. | 1910
The plaintiff’s demand consists of three causes of action — $236.17, a balance claimed to be due upon an account stated between J. G. Ingle and defendant, and assigned to plaintiff; $3, upon another account between those persons, also assigned to plaintiff; and a balance of $50, for personal services rendered to defendant by plaintiff. There was a conflict of evidence as to each of these claims, making a plain question of fact as to each, and they were all fully and fairly submitted to the jury, which found for the plaintiff in the sum of $283.25. This appeal is from an order denying a new trial.
The court submitted to the jury the question whether or not any such agreement was made, with the instruction that plaintiff could recover upon the first cause of action only in case they found it was so agreed. In submitting to the jury plaintiff’s claim as to an account stated the learned trial judge said:
“If you find, gentlemen of the jury, upon the evidence, that there was a certain item or items that the parties' agreed to suspend or leave out, pending future investigations or future inquiry, and if they agreed that they should take up other matters and claims, and examine the claims of each party; and that as to these claims that they did take up and examine, if you find that they arrived at a correct balance upon these claims, and that it was found that — that there was a balance due from the defendant to J. G. Ingle as claimed by plaintiff, the plaintiff would be- entitled to recover upon that agreed balance. In other words, gentlemen of the.jury, the right of the plaintiff to recover in this action would not be defeated because of the fact —if you find it to be a fact — that one or two items were left unexplained and omitted from the account by agreement between the parties.”
The defendant contends that the court erred in so charging, and insists that, where the transactions between the parties resulted in mutual, open, and current accounts between them, there can bo no account stated, unless all of the items claimed by each are included; in other words, that the balance found must be complete and final.
In the third cause of action plaintiff- alleged an agreement to pay the amount claimed, and also that the services were reasonably worth that amount. Defendant moved that plaintiff be required to elect whether to rely upon the agreement or the reasonable value. This motion was addressed to the discretion of the court, of which, in denying it, there was no abuse. Plummer v. Mold, 22 Minn. 15.
There were some slight discrepancies in the amounts claimed in the complaint and those shown by the testimony. Those discrepancies do not affect plaintiff’s right to recover, the recovery being less than the amount claimed in the complaint. We have examined the evidence as contained in the record, and find no error in the rulings of the court with reference to its admission, and also find that the evidence was sufficient to justify the verdict. The charge very clearly submitted the questions involved to the jury, and there is no reason for disturbing the verdict rendered.
Order affirmed.