38 P. 707 | Or. | 1895
Opinion by
The evidence offered tended to show that on or about the thirteenth day of January, eighteen hundred and
1. The foregoing is substantially all the evidence adduced by plaintiff, and the counsel for defendants contend that it was insufficient to go to the jury to charge defendant Ashnah Plunkett in an action upon an account stated, and, consequently, that the judgment of nonsuit was properly granted. “A motion for a nonsuit,” says Lord, C. J., in Brown v. Oregon Lumber Company, 24 Or. 317, 33 Pac. 557, “is in the nature of a demurrer to the evidence; it admits not only all that the evidence proves, but all that it tends to prove. The evidence given for the plaintiff must be taken to be true, together with every inference of fact which the jury might legally draw from it. Whether there is any evidence tending to prove the material allegations upon which a cause of action is based is a question of law for the court, but whether a given amount of evidence is sufficient to sustain such allegations is a question of fact for the jury. When there is no evidence tending to sustain the plaintiff’s cause of action, it is the duty of the court to grant the nonsuit, and withdraw the case from the jury. ” See also Herbert v. Dufur, 23 Or. 467, 32 Pac. 302. Shattuck, J., in Tippin v. Ward, 5 Or. 453, says: “A case should be submitted to the jury, unless there is an entire lack of evidence tending to maintain the issues on behalf of ¡the plaintiff, or unless, upon the whole case made by the plaintiff himself, it appears beyond doubt that the plaintiff has no right to recover”: Southwell v. Beezley, 5 Or. 458, and Grant v. Baker, 12 Or. 331, 7 Pac. 318. TLw doctrine now established by precedents has come to this: The court is the exclusive judge of the competency of evidence offered to prove a fact under the issues. If competent, and its tendency, however slight, is to prove such fact, the jury ought to have it, as they are the exclu
2. The question now recurs, was it competent for the plaintiff to prove, under his declaration upon an account stated, the facts set forth in his bill of exceptions? Or, in other words, was the evidence introduced competent to support his cause of action as stated? This involves an examination of the question as to whether the facts of the case, giving them the full force claimed by plaintiff, constitute an account stated. The prior liability of the defendants to plaintiff was upon contract, and for breach thereof. The defendants had failed to construct certain fencing which they agreed to make, for which failure they became liable in damages. This, be it understood, was the nature of defendants’ prior liability to plaintiff. Now it is claimed that there was an account stated about July first, eighteen hundred and eighty-nine, of the differences existing between plaintiff and defendants, and that defendants undertook and agreed to pay plaintiff an ascertained balance of three hundred dollars, the amount which plaintiff had paid to Mays for constructing said fencing. This is the foundation of the present action. “When two persons, having had monetary transactions together, close the account by agreeing to the balance appearing to be due from one of them, this is called ‘an account stated.’ It is of importance from the fact that it operates as an admission of liability by the person against whom the balance appears; or, in the language of the common law, ‘the law implies that he against whom th"'. balance appears has engaged to pay it to the other; and on this implied promise or admission an action may be brought’”: 1 Am. and Eng. Ency. 110. Wells, J, in
Recurring to the facts of this case, it is apparent that the obligation of the defendant to construct the fence in question was not a debt due and owing from the defendants to plaintiff; it was merely a demand for unliquidated damages for breach of contract, and hence was not a proper subject upon which to base an account stated. To test the question as to the correctness of this conclusion, suppose the plaintiff had sued the defendants upon their agreement to build the fence, and for damages for their default. Would it be a good defense to plead an account stated with reference thereto, without also showing payment of the amount found to be due? In other words, is the mere statement of the account as alleged a discharge of the old cause of action for breach of contract? Unmistakably not. And inasmuch as a new cause of action