279 P. 630 | Or. | 1929
Action on account stated. On the trial both parties moved for directed verdict, the court discharged the jury and entered judgment for the defendant from which plaintiff appeals. Affirmed.
This is an action based upon an account stated. Plaintiff alleged that he had rendered services for defendant for which defendant had agreed to pay $1,000; that plaintiff had rendered an account of said services to defendant who had paid only a part thereof and that on the fourth day of November, 1926, plaintiff and defendant had an accounting and settlement of all matters between them touching said services, the several payments made thereon and upon such accounting there was found due and owing to plaintiff from defendant the balance of $750, which sum defendant there and then promised and agreed to pay; that defendant, although often requested so to do, had wholly refused and neglected to pay said sum or any part thereof. The answer to the second amended complaint, on which the action was tried, consisted entirely of general denials. At the close of *254 taking the testimony defendant moved for a directed verdict in his favor. Immediately after the court denied that motion plaintiff moved for a directed verdict in his favor. Whereupon defendant said that suited him. The court then discharged the jury and after hearing argument of the counsel found in favor of the defendant. Judgment was rendered for defendant for costs and disbursements. Thereafter and within due time plaintiff moved for a new trial, which was denied. Plaintiff appeals from said judgment alleging errors on the part of the court in overruling his objections to certain questions propounded to plaintiff on cross-examination, in overruling objections to questions propounded to defendant on direct examination, for denying plaintiff's motion for a directed verdict in his favor, and denying plaintiff's motion for a new trial. AFFIRMED. The bill of exceptions in this action discloses that the questions objected to by plaintiff, both those propounded to plaintiff on cross-examination and to defendant on direct examination, related to the employment of plaintiff by defendant. It must be borne in mind that plaintiff alleged that he was retained by defendant and employed by him in his professional capacity as attorney at law and that he rendered certain services by virtue of said employment and retainer. Defendant denied that allegation. Plaintiff was required to prove that he *255 rendered the services as alleged. The defendant, therefore, had a right to question his alleged employment of plaintiff. An account rendered must be based on some substantial service, merchandise sold or some other matters which created a debt from defendant to the plaintiff. If plaintiff rendered no services to defendant or for which defendant was legally liable, he cannot recover any sum from him by sending him an account, although defendant never denied the account: 1 C.J. 695, § 288.
The evidence was conflicting. Both parties having moved for a directed verdict the jury was waived. No error is predicated upon the action of the court in discharging the jury. The court having found in favor of defendant upon conflicting evidence the judgment of the Circuit Court is conclusive. This court has no right to go behind a judgment rendered on conflicting evidence without some error of law having been made. The judgment is affirmed.
AFFIRMED.
McBRIDE, RAND and ROSSMAN, JJ., concur.