64 P. 813 | Nev. | 1900
Lead Opinion
The facts sufficiently appear in the opinion. The action was upon an alleged account stated.
In April, 1896, plaintiff leased defendant the Arcade Hotel, at Reno. Defendant was financially embarrassed, and property that he might acquire would be subject to process by his *47 creditors. To avoid this, it was agreed that plaintiff, in his own name and with his own funds, should purchase and keep in his possession and under his control the necessary supplies to be used by defendant in the business of the hotel, to be paid for out of the receipts of the business, after deducting certain mentioned expenses.
In pursuance of this plan, plaintiff from time to time purchased supplies, storing them in a cellar of the hotel, of which he kept the key, and defendant used them as the business required. Upon January 23, 1899, plaintiff gave to defendant a statement containing the monetary transactions between them down to January 1, 1899, showing an indebtedness of $1,224.51. Of this amount, $838.26 was for supplies furnished by San Francisco merchants, itemizing the amount due each, and $386.25 for balance of rent of hotel, and supplies furnished by plaintiff himself. It was shown that plaintiff kept defendant's books, that the account of each creditor was separately kept therein, and that similar statements of accounts to the one in suit, showing from time to time different balances, had been delivered to defendant.
In reference to the account, plaintiff testified: "Q. Who is the person charged? A. I made it that way to show him (defendant) what was due for liquors, but it was due me. I was owing the firms. I simply did that so he could keep track of his business — know when he got liquors and what he paid for them.
"Q. Does he know who he got them (it) from? A. Yes, sir; every time."
About five days afterwards the parties met.
Plaintiff testified:
"I went up to see Mr. White after I had sent my attorney, Judge Haydon, and I agreed to let him have the hotel, and on that I went to his room. He told me, in bed, then, that if I would give him a day or two he would secure me the amount, $1,224.51, and pay me the rent sum in advance thereafter, and that he would like to keep the hotel. I accepted his proposition, and that is all. In regard to the statement, he proposed to settle it in not more than two days. He did not comply with his agreement, and the negotiations failed."
There was other testimony, but in our view these were the *48 controlling facts. A jury returned a verdict in favor of plaintiff. A new trial was allowed, and from the order plaintiff appeals.
An account stated may not be in writing, and, if in writing, its form is immaterial. (Watkins v. Ford,
It was not necessary to have proven an express agreement to it. It may be implied from circumstances. (Lockwood
v. Thorne,
No objection was made to any item, and When defendant promised to secure its payment the inference became irresistible that the minds of the parties met, and that the defendant assented to it as correct. Counsel for defendant have not attached importance to this promise, presumably for the reason that objection was taken to this evidence, as being an attempt to compromise. There is no such attempt shown by the record. The promise either to secure or pay the debt in two days, and to pay the rent in advance, according to the terms of the lease, was nothing more than the naked promise of defendant to do what in law he was bound to do instanter.
The record contains the following statement:
"During the cross-examination of the plaintiff, and after certain objections made by the attorneys of the plaintiff had been sustained, counsel for defendant stated that he desired to make an offer to prove certain things which he believed were material, and was about to state what he desired to prove and would offer to prove, when he was stopped by the court, without objection by the attorneys for the plaintiff, and informed that he could not orally state what his offer was, and that if he desired to make an offer he must reduce it to writing and submit it to the court, to which refusal, order, and request of the court counsel for defendant duly excepted, upon the grounds that counsel had the right to make the offer orally; that no objection thereto had been made by the attorneys for the plaintiff, to his so doing; that until the offer was made, or it was shown that it was not being made in good faith, the court could not determine that it was immaterial, or that it would prejudice any of the rights of the plaintiff."
It was in the discretion of the court, of its own motion, to *49 require a statement containing the substance of the evidence about to be offered, in order to determine its competency.
"There are times when it is not advisable to apprise the witness about to be examined of the facts expected to be proved by him. These or any other sufficient reasons are to be weighed by the justice upon such questions. But in every case counsel are bound, if required, to inform the court how the evidence is relevant, so that he may act understandingly in relation to the admission of the evidence. This may be done by making the statement in writing and handing it to the court, (3 Wait, Law Prac., 5th ed. 474.)" (1 Rice, Ev. p. 512.)
The court properly struck out as immaterial the portion of the testimony of Thomas McGovern relating to plaintiff's statement to him as to loss upon defendant's account.
The contention of respondent that defendant was liable only to the extent of the value of supplies used is not in any wise presented by the record.
The order granting defendant a new trial should be reversed, and it is so ordered.
Addendum
In his answer, defendant denied that an account had been stated between himself and plaintiff, and charged fraud.
The charge of fraud is unsupported. The only issue, therefore, was whether or not an account had been stated. Whether the supplies had been used by White, or that White had received a surplus applicable to the claim of plaintiff, or that he was entitled to discounts, if relevant at all, were only so for the purpose of tending to establish, or not, the cause of action made by the pleadings.
It is claimed that a material conflict exists in the evidence touching the promise of defendant to pay the account, and for that reason the verdict should not be disturbed. It was unnecessary for Quinn to show an express promise to pay. An implied promise from which the inference could legitimately be drawn that the account was correct was as good. Upon this view Quinn testified, and it was uncontradicted, that White said that, if he were given a day or two, he would *50 secure its payment. In this condition of the case, White's testimony that he never promised to pay the account became immaterial, and did not raise a conflict.
Attention is again directed to the ruling of the district court requiring counsel for respondent to reduce to writing testimony sought to be adduced upon the cross-examination of plaintiff.
A reexamination has convinced us that our opinion is correct.
As a further reason, it may be added that the record fails to show what was expected to be proven by the witness.
"In order to determine whether prejudice resulted to defendant by reason of the exclusion of the evidence, the answer, or the facts that they tend to establish, should appear in the record." (Jenks v. The Knotts M.Co.,
Rehearing denied.
