Opinion
No. 2789
August 7, 1928.
APPEAL from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Harry Swanson, for Appellant:
Thatcher Woodburn and John Donovan, for Respondent:
The notes being given for a stated purpose, and no liability being proven or attempted to be proven as set forth in the "Deposits" clauses in the agreements, we maintain that the said notes, and each of them, are in fact null, void and of no effect, and should have been so declared by the lower court.
The plaintiff laid a foundation for the purpose of, and made efforts to go into the items of the account stated, which was improper. 1 C.J. 729, par. 402; 1 C.J. 726, par. 397.
Though the plaintiff alleged the account stated to have taken place on the 13th day of January, 1927, the testimony of Howard Brown, president of the Nevada Motor Company, is that the only time there could have been any "account stated" would of necessity been in February of 1926, if at all, which was not sufficient. 1 C.J. 723, par. 381; 1 C.J. 728.
Defendant's assent to the settlement must be averred. 1 C.J. 723, par. 382. The time when the account was stated must be alleged. 1 C.J. 724, par. 386; Loventhal v. Morris, 103 Ala. 332, 15 So. 672.
The judgment must of course conform to the pleadings in an action on an account stated. 1 C.J. 730, sec. 406; Davis v. Boswell, 77 Mo. A. 294.
In an action strictly upon an account stated, the plaintiff must recover upon the account stated or not at all, and he cannot recover upon the original items of account nor upon quantum meruit. Duerr v. Sloan, 181 P. 407; Foster v. Dwire, 199 N.W. 1017.
A complaint on an account stated cannot be amended at the trial so as to change the action to one upon an account. Bailey v. Wilson, 55 P. 973.
It is submitted that the witnesses A.A. Anderson and Howard Brown were not entitled to mileage beyond a distance of 30 miles from the county in which the trial occurred. Rev. Laws 1912, sec. 5431; Naylor v. Adams, 114 P. 997; Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1.
It is a well-settled principle of law that where there is a substantial conflict in the testimony the judgment will be affirmed. Strattan v. Raine, 45 Nev. 24; Dixon v. Miller, 43 Nev. 280-288; Thompson v. Tonopah Lumber Company, 37 Nev. 183, and cases cited at page 188; Gardner v. Gardner, 23 Nev. 214; Page v. Walser, 46 Nev. 390-409; Moore v. DeBernardi, 47 Nev. 33-40; Bawden v. Kuklinski, 48 Nev. 181-188; McNee v. McNee, 49 Nev. 90-93; Dunphy v. Dunphy, 119 P. 512.
Pleadings may be amended at the trial to conform to the proof. Rev. Laws 1912, sec. 5081; Finnegan v. Ulmer, 31 Nev. 523-527; Miller v. Thompson, 40 Nev. 35-41; Ramezzano v. Avansino, 44 Nev. 72- 80; Gartlan v. C.A. Hooper Company (Cal.), 170 P. 1115; Koeberle v. Friganza (Cal.), 226 P. 35-38.
It is sufficient to allege that an account was stated between the parties, that a certain sum was thereby found due from one to the other, and that no part of such sum has been paid. Chittenden Company v. Leader Furniture Co., 201 P. 843; United States Health etc. Co. v. Batt, 17 N.E. 195-197.
Where defendant denies the statement of an account, the plaintiff may show the particular transactions between the parties as a basis for the statement of the account. Steinmetz v. Grennon (Ore.), 212 P. 532-536; Miller v. Carnes (Minn.), 103 N.W. 877; 1 C.J. 728.
The allegation of the time when the account was stated need not be proved strictly as laid. Loventhal v. Morris (Ala.), 15 So. 672.
The statement of the account need not be in writing. Quinn v. White, 26 Nev. 42, 62 P. 995; 1 C.J. 682, sec. 256; 1 Cal. Jur. 197; Bennett v. Potter (Cal.), 183 P. 156; Converse v. Scott (Cal.), 70 P. 13.
Courts of appeal will not disturb the findings or decree of the trial court for any errors in the admission of testimony that did not work substantial injury to the party claiming to have been aggrieved. E.W. McClellan Company v. East San Mateo Land Company, 137 P. 1145-1147.
OPINION
Respondent, as plaintiff, brought suit to recover a money judgment. The amended complaint upon which the trial was had contains four causes of action. The first three causes of action were upon promissory notes and the fourth was upon an account stated.
An answer was filed admitting the execution of the notes sued upon, but alleged that the notes sued upon in the first and second causes of action were deposited as security to secure certain contingent indebtedness that never accrued. The answer alleged full payment of the note described in the third cause of action, and denies that there had been an accounting as alleged in the fourth cause of action. The defendant also pleaded a counterclaim.
Judgment was rendered in favor of the plaintiff, from which an appeal has been taken. The defendant also appealed from the order denying his motion for a new trial, and from an order denying his motion to retax costs.
The plaintiff is the state agent for the Packard and Hupmobile cars. The defendant was desirous to become the agent of the plaintiff within certain territory in the state, and entered into what appears to be the usual agreement in such cases. The plaintiff was to help the defendant finance his sales and to that end, as a protection, demanded a cash deposit. Defendant being unable to make the cash deposit gave the notes sued upon and deposited certain stock. It was upon these notes and an alleged account stated that the suit was brought.
It is contended that the trial court erred in receiving evidence of a book account, in view of the cause of action upon an account stated. It is also asserted that the evidence shows no indebtedness due the plaintiff.
1. Taking up the first contention, we do not think, in view of the nature of the dealings between the parties, that the court committed error in going into the book account between the parties. The question of the payment of the notes involved credits given the defendant, as commission on sales, charges for parts sent him, in pursuance of the agreement, advances made, and the like.
2. We think there is nothing in the contention that the evidence does not support the judgment. We have read the entire evidence with care, and the record shows that the trial judge was cautious and considerate, and we cannot say that a correct conclusion was not reached. Three witnesses testified as to certain vital matters in support of the plaintiff's case, and certain letters and telegrams tend to confirm portions of plaintiff's case. The defendant kept no account of his transactions, and though he testified that in October, 1924, the accounts between the parties were fully settled, there is a letter in the record, written by him after that date, in which he admits his inability to pay. We do not deem it necessary to review the evidence at length.
3. During the trial the court permitted an amendment to conform to the proof. This was perfectly proper and courts should be liberal in allowing such amendments. Miller v. Thompson, 40 Nev. 35; 160 P. 775; Ramezzano v. Avansino, 44 Nev. 72, 189 P. 681.
The plea of an account stated was properly averred. 1 C.J. 678.
4. It has been stipulated that we may dispose on this appeal of the ruling of the trial court on the question of costs. We think the motion to retax costs should have been granted as to the two items of $44.52 mileage of two witnesses from the Utah-Nevada state line to Reno.
We held in Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1, 149 P. 188, that a party could not recover mileage for witnesses coming from another county in which he resides, if over thirty miles distant, and since the witnesses in question resided in Utah and traveled within this state a distance greatly in excess of thirty miles, no allowance can be made. We said in the case mentioned:
"* * * Since it was not shown on the hearing of the motion to retax costs that they were not served at the state line, we will not disturb these items."
That case was tried in Reno, Washoe County, less than thirty miles distant from the California state line, which is a very different state of facts from those in the instant case.
It is ordered that the case be remanded to the trial court with instructions to modify its ruling on the motion to retax costs as herein indicated, and that the judgment be affirmed in all other respects. Appellant to recover his costs incident to the appeal as to costs only.