Thomas v. HowserThomas v. Howser
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This is an action for attorney fees for the representation of defendant in a divorce case. The complaint sought payment of $7,060.34. as the balance- due and owing fоr such legal services. The case was tried before the court, without a jury. Defendant appeals from a judgment in the sum of $3,060.34.
Defendant’s first assignment. of error is that the court erred in оverruling defendant’s objection to the admission of any evidence in support of plaintiff’s claim because of his failure to comply with defendant’s demand under
The provisions of
Even in actions on account some courts have held that the terms of such statutes are directory, rather than mandatory, and have permittеd plaintiff to offer evidence despite failure to comply with such statutes where the defendant has not been misled or prejudiced. Miller v. Village of Mullan, 17 Idaho 28, 104 P 660 (1909); Provenzano v. Shidler, 68 Nev 232, 229 P2d 145 (1959). See Elmore v. Tingley, 78 Cal App 460, 248 P 706 (1926). See also Hayden v. City of Astoria, supra, at 218-219, and Culver v. Rendahl et ux, 211 Or 682, 695, 318 P2d 275 (1957). Other courts, however, have held such statutes to be mandatory. Holmes v. Graves, 83 Ariz 174, 318 P2d 354 (1957); Kaffer v. Hunt, 108 Colo 329, 117 P2d 311 (1941).
The complaint in this case included allegations which would have been appropriate in an action on an account. It also allegеd, however, that between certain months plaintiff “performed professional services in the prosecution of said suit at Defendant’s •special instance and request, for which Defendant promised and agreed
“That between the months of November, 1966 and September, 1967 inclusive, Plaintiff represented Defendant as his attorney in a suit filed by Defendant against his former wife, Shirley June Howser in the Klamath County Circuit Court as Case Number 66-219 E, and performed professional services in the prosecution of said suit at Defendant’s special instance and request, for which Defendant promised and agreed to pay and which were reasonably worth the sum of SEVEN THOU-
The complaint also alleged that upon the completion of these sеrvices plaintiff demanded payment of $7,060.34, “which sum defendant agreed to pay,” but thereafter refused to pay. These allegations, together with the previous allegations, аnd in the absence of a demurrer or motion to make more definite and certain, might have been sufficient in an action on an account stated. Sunshine Dairy v. Jolly Joan, suprar at 85. Cf. Mortensen v. Dayton S. & G. Co., 143 Or 273,, 274-75, 22 P2d 320 (1933). See also Crawford v. Hutchinson, 38 Or 578, 65 P 84 (1901).
No demurrer or motion to strike or to make more definite and certain was filed in this case. Neither did defendant move to require an election of remedies or a separate statement of more than one cause of action. As previously stated, OES 16.470 has no application in an action for the reasonable value of services or an action fоr an account stated. It follows that the trial court did not err in overruling defendant’s objection to plaintiff’s evidence.
Defendant also assigns as error the overruling of his objeсtion to the admission in evidence of plaintiff’s office diary containing entries made by his secretary listing persons who came to plaintiff’s office and who telephoned plaintiff.
Plaintiff testified, without objection, that “the office records indicate 184 incoming phone calls and something like 104 conferences” relating to this case. He then testified that “the office records” included an office diary kept by his secretary “regularly in the course of my office” and which accurately reflected “the number of consultatiоns and the number of phone calls that you had * * * in this case with Mr. Howser,” including conferences and calls made to others in connection with the case.
The office diary was then offered in evidence. In cross-examination “in aid of an objection” it was then developed that although the office diary showed the names of persons who camе to the office and the names of persons who made incoming telephone calls to plaintiff or to whom such calls were made by plaintiff, it did not further identify these names and that plaintiff could not personally remember each call or conference. It also was developed on cross-examination that some time after the original diary entries were made and in preparation for this case, plaintiff went through the diaries and his
Defendant then objected to the office diary оn the ground, among others, that it could not be used to refresh plaintiff’s recollection because he had no independent recollection and that it was not “within the statute оf business records” (OES 41.690) because “the check marks were put on at a later time.” Those objections were overruled.
Plaintiff also offered in evidence the files which had bеen examined by him as a part of the process of instructing his secretary to place the check marks in the office diary. No assignment of error has been taken to thе admission in evidence of these files.
It may be that defendant’s objections to the office diary were well taken. It is well established in Oregon, however, that in a case tried befоre the court, ■without a jury, the admission of incompetent evidence over objection will not ordinarily be a ground for reversal if there was competent evidence rеceived sufficient to support the findings, because it will be presumed that the trial court disregarded the inadmissible evidence and relied on the competent evidence, unless it reasonably appears from the record that the incompetent evidence influenced the trial court in its decision. Borntrager v. McCann, 244 Or 620, 629, 420 P2d 53 (1966); Lenahan v. Leach, 245 Or 496, 500, 422 P2d 683 (1967). See also McCormick On Evidence 137, § 60 (2d ed 1972).
In this case the trial judge rejected plaintiff’s contention that be was entitled to be paid attorney fees in the sum of $7,060.34, but found that he was entitled to a reasonable attorney fee, including costs and less payments, in the sum of $3,060.34. After examining the record, including plaintiff’s volxuninous office files, we find that there was substantial competent evidence to support that finding, in addition to, and not including the office diary. We also find no reasonable basis to support the possible contention that the office diary had any substantial influence upon the decision of the trial court in this case.
Defendant has also moved for a new trial on the ground that this same exhibit, the office diary, has been lost or destroyed, through no fault of either party.
Affirmed.
Notes
“Pleading account; delivery of copy of account; further account. A party may set forth in a pleading the items of an account therein alleged, or file a сopy thereof, with the pleading verified by himself, or his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be truе. If he does neither, he shall deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, verified as in this section provided, or be рrecluded from giving evidence thereof. The court or judge thereof may order a further account when the one filed or delivered is defective.”
Paragraph II of the complaint alleges as follows: SAND FIVE HUNDRED AND 00/100 ($7,500.00) DOLLARS: Plaintiff further expended in behalf of said Defendant upon his promise to repay the same necessary costs and disbursements in connectiоn with such services amounting to the sum of EIGHT HUNDRED NINETY-FOUR AND 37/100 ($894.37) DOLLARS; that the total sum which became due and owing from Defendant to Plaintiff is the sum of EIGHT THOUSAND THREE HUNDRED NINETY-FOUR AND THIRTY-SEVEN/ 100 ($8,394.37) DOLLARS, no part of which sum has been paid except the sum of ONE THOUSAND THREE HUNDRED THIRTY-FOUR AND THREE/100 ($1,334.03) DOLLARS, and there remains now due and owing to Plaintiff from Defendant a balance of SEVEN THOUSAND SIXTY AND THIRTY-FOUR/100 ($7,060.34) DOLLARS.”