Masters v. Walker, 195 P. 381

Masters v. Walker

195 P. 381 | Or. | 1921

BEAN, J.

The question presented upon this appeal for which the plaintiff contends, and upon which the case turns, is that there was no substantial evidence to support the verdict. Defendant maintains there was competent evidence supporting the verdict, and that the trial court erred in granting a new trial.

Epitomizing the testimony, it will be seen that according to the plaintiff’s version, on December 15, 1915, at the time the parties discussed the matter of compensation,, and Mr. Masters informed Mrs. Walker of the amount of his fee, $4,000, Mrs. Walker “seemed satisfied,” and indicated that on her return to Prineville she would see about taking advantage of his offer to take $3,500 cash. This is as strong a statement as can be found in the testimony on the part of plaintiff. On the other hand, the testimony of the defendant tended to show that when he informed her that the fee would be $4,000 for himself and $4,000 for Mr. Bell, she exclaimed three times, “Eight thousand dollars,” and remarked “That is my death blow,” that she never spoke of being satisfied, and that she did not assent to the same or promise to pay it. She asserts that when she stated that upon her return to Prineville she would think the matter over and see what she could do, that there was a man whb owed her money, she addressed her remarks to Mr. Bell and not to Mr. Masters. A reading of her testimony cannot fail to convince a -disinterested person that Mrs. Walker intended the jury to understand from her testimony that she never assented to the amount of plaintiff’s charge. The testimony of Miss Taylor tended to show that’ Mrs. Walker did not agree to the proposition made. Miss Taylor testified that Mr. Bell, who was interested in and took part in the attempted settlement, *307said he would advance the money to pay Mr. Masters and would take her note for the amount “if she would agree to his terms.” This language of Mr. Bell, which the jury had the right to believe from Miss Taylor’s testimony, indicated that at that stage of the discussion there had been no settlement. She testified in effect that there was not a word said about Mrs. "Walker consenting or agreeing; that she did not consent to plaintiff’s proposition either orally or in writing;

1, 2. It is evident from the testimony that reasonable minds might draw different conclusions therefrom. In such a case the testimony should be submitted to and be passed upon by a jury: Domurat v. Oregon-Washington Ry. etc. Co., 66 Or. 135 (134 Pac. 313). A careful examination of the testimony in the present case leads to the conclusion that there was testimony on the part of the defendant contradicting the claim of plaintiff that an account was stated between him, and Mrs. Walker, on December 15, 1915. Such testimony was competent and substantial to refute the testimony upon the part of plaintiff. Mrs. Walker was a woman of about 73 years of age, and her testimony is not as direct and positive as Miss Taylor’s, yet this is a matter for the consideration of a jury. It was for the jury to construe her oral testimony and that of her witness. The case was a proper one for the determination of a jury.

3. There being competent substantial evidence sustaining the defendant’s theory of the case, and refuting plaintiff’s claim, as made by his complaint and testimony, according to the mandate of the Constitution that “no fact tried by a jury shall be otherwise re-examined in any court of this state, *308unless" the court can affirmatively say there is no evidence to support the verdict,” the trial court was without power or authority to set the verdict aside and grant a new trial on account of insufficient evidence : Section 3, Article VII, Constitution of Oregon as amended (see Laws 1911, p. 7).

4-6. An account stated presupposes an absolute acknowledgment or admission of a certain sum due, or an adjustment of accounts between the parties, the striking of a balance, and an assent express or clearly implied to the correctness thereof. If the acknowledgment or admission is qualified, and not absolute, or if there is but an admission that something is due, the transaction does not create an independent cause of action. Whether the account rendered was admitted by the debtor so as to make the account an account stated is a question of fact for the consideration of a jury, if the facts are not clear or undisputed: 1 R. C. L., p. 211, § 9. In stating an account, as in making any other agreement, the minds of the parties must meet: 1 C. J., p. 684, § 262; Howell v. Johnson, 38 Or. 571, 575 (64 Pac. 659); Carlon v. First Nat. Bank, 80 Or. 539, 548 (157 Pac. 809).

7. The testimony on the part of defendant clearly tended to show that on December 15, 1915, there was no meeting of the minds of plaintiff and defendant upon the question, of amount of plaintiff’s attorney’s fees. Mrs. Walker did not dispute that she was indebted to plaintiff. She did not refuse at that time to pay him, but her testimony warranted the jury in believing that she did not assent to the amount of his claim. It might be said that the testimony upon the part of plaintiff on this point was not strong. The testimony upon the part of defendant may not have been much stronger, yet the question *309of the weight of the evidence was for the jury. The only force that the letters written by plaintiff to defendant could have would be to corroborate the statement of plaintiff that there had been an account stated on December 15, 1915. The complaint is based on an agreement made on that date. It was possible for the jury to draw different conclusions from the testimony in the case. The jury found in favor of defendant to the effect that there was no account stated between plaintiff and defendant, on December 15, 1915, as claimed by plaintiff. Judgment on,the verdict having been rendered, the trial court and this court are powerless to grant the plaintiff relief.

It is not claimed on the part of plaintiff that any errors occurred upon the trial, .and. we find none. The trial court erred in setting a,side the verdict.

The judgment of the lower court is therefore reversed, and the cause, remanded, with direction to enter a judgment in the case in accordance with the verdict of the jury.

Reversed and Remanded With Directions.

Burnett, C. J., and Johns and Brown, JJ., concur.