Opinion
No. 2780
May 1, 1928.
APPEAL from Second Judicial District Court, Washoe County; G.A. Ballard, Judge.
James D. Finch, for Appellant:
Barry Barry, for Respondent:
When the defendant has been ordered to account or voluntarily, as in this case, renders it, the burden is on him to establish its correctness.
The court's findings and judgment are nothing else but a finding and judgment that the defendant Hunt rendered an account. This action was not simply for the rendering of an account, but was for judgment for any balance found due. The court has failed to find any balance due either party. Surely the accounts are not even. See Polhemus v. Carpenter, 42 Cal. 375; Ladd v. Tully, 51 Cal. 277; Morenhout v. Barron, 42 Cal. 591; Devoe v. Devoe, 51 Cal. 543; Allison v. Darton, 24 Mo. 343; Farrar v. Lyon, 19 Mo. 122; Bosquett v. Crane, 51 Cal. 505; Rice v. Inskeep, 34 Cal. 225; Bradbury v. Cronise, 46 Cal. 287; McDonald v. M.V. Homestead Assn., 51 Cal. 210; Snodgrass v. Carlson (Kans.), 232 P. 241; Chetwood v. Calif. Nat. Bank, 45 P. 407; Baird v. Upper Canal Irr. Co., 257 P. 1060.
The court found that the defendant rendered an account to plaintiff and that nothing was found to be due to plaintiff.
The only point we can make out of this appeal is insufficiency of the evidence to support the finding of the court. It is an elementary principle of law that where there is a conflict of testimony, or any testimony to support the findings, the appellate court will not disturb them. Anderson v. Feutsch, 31 Nev. 501; Tonopah L. Company v. Riley, 30 Nev. 312; Wiggins v. Pradere, 32 Nev. 183; McNee v. McNee, 49 Nev. 90.
OPINION
This is a companion case to Hunt v. Johnston, No. 2779, this day decided. It is an action for an accounting. The defendant filed an account.
After the evidence was taken the learned judge filed his written decision and ordered judgment in favor of the defendant. In his written opinion he said:
"The defendant rendered an account which is attempted to be falsified in certain particulars. The evidence in this respect is too vague and indefinite to sustain the burden of proof. While suspicion is cast on a few items the court cannot of course elevate these to the dignity of facts, or if it did do so determine the incorrectness in dollars and cents."
1. From this as well as from the findings it clearly appears that the court took the view that the burden of proof was upon the plaintiff to show the incorrectness of the account. Such is not the law. The burden rests upon the person accounting. Marvin v. Brooks, 94 N.Y. 71; Thatcher v. Hayes, 54 Mich. 184, 19 N.W. 946; Fox v. Hall, 164 Cal. 287, 128 P. 749; 1 C.J. 643.
2. When a court reaches an erroneous and prejudicial conclusion by a misapplication of a rule of law, or by erroneously placing the burden of proof upon the losing party, particularly where the evidence is about evenly balanced as in instant case, no course is open but to reverse the judgment.
It is ordered that the judgment and order be reversed, with costs.
ON PETITION FOR REHEARING
August 7, 1928.
Rehearing denied.