Manning v. Bowman

69 P. 995 | Nev. | 1902

Lead Opinion

The facts sufficiently appear in the opinion. This action is brought to recover judgment against the estate of Samuel W. Bowman, deceased, for services rendered by plaintiff as his attorney and agent from June 30, 1896, to June 30, 1900.

An answer was filed controverting some of the allegations of the complaint, but admitting that upon the 17th day of January, 1881, deceased gave a general power of attorney to plaintiff to transact business for him in this state, "and said plaintiff thereupon became and thereafter continued to act as the agent of Samuel W. Bowman, deceased, until on or about the 30th day of June, 1897, when said agency was terminated as hereinafter alleged." Then follows an allegation that upon the last-named day Samuel W. Bowman became non compos, and incapable of legally transacting any business whatever, and remained incapacitated until his death, June 30, 1900.

Before the trial the answer was amended, and February 24, 1897, instead of June 30th, fixed as the day when incompetency occurred. A jury returned a general verdict for defendant. By it they must have concluded that the incapacity of defendant arose upon the date fixed by the amended answer, to wit, February 24, 1897.

From June 30, 1896, when the service commenced, to February 24, 1897, when it terminated, nearly eight months elapsed, during which the answer admits plaintiff acted as agent and attorney for decedent.

The admission must be taken as true for the purposes of this action. (Section 3160, Comp. Laws 1900.)

Respondent seeks to avoid its effect by calling to his aid the testimony of one of appellant's witnesses, who, upon cross-examination, testified that deceased attended to his own business matters until February 24, 1897. This cannot help the case. The testimony is inconsistent with the admission.

In Paige v. Willet, 38 N.Y. 31, where a similar question was considered, the court said: "Such admissions are conclusive upon the parties litigant and upon the court, and no contradictory evidence can properly be received, or if it is, either through inadvertence or tacit consent, foisted into the case, is entitled to no consideration." (11 Am. Eng. Enc. Law, p. 447.)

The judgment and order denying a motion for a new trial are reversed, and cause remanded for new trial.

MASSEY, C. J.: I concur.

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Dissenting Opinion

I think the judgment in this case should be for the plaintiff for the sum of $200, being for eight months' services at the rate of $25 a month, and, if plaintiff files with the clerk of the lower court his consent to such a judgment within twenty days after the remittitur goes down, then such should be the judgment in the case; but, if plaintiff fails to file such consent, then the order denying a new trial should be reversed, and a new trial ordered.