Hendrix v. Kirkpatrick

Post, C. J. Counsel for tbe plaintiff in error frankly admits that tbe only question presented by tbe record of this case is whether tbe evidence is sufficient to sustain tbe finding that there was an account stated by tbe parties as alleged in tbe petition below, and upon which a recovery was allowed by the district court for Sarpy county. Tbe specific allegation to tbe petition, to which-Mhe verdict and judgment are responsive, is that there is due from tbe defendant to tbe plaintiff therein a balance of $137.82 for work and labor as per settlement on or about January 27, 1892, and which sum tbe said defendant promised and agreed to pay. 671 It appears from tbe evidence submitted by tbe defendant in error, Kirkpatrick, that on quitting tbe employ of tbe plaintiff in error, Hendrix, some time prior to tbe date above named, be was requested by tbe latter to make out and furnish an account of bis charges; that in response to such request be prepared and forwarded a statement of tbe account, showing tbe services rendered and balance in bis favor, to which Mr. Hendrix responded objecting to one charge only, to-wit, for one day’s labor with team. With respect to tbe subsequent transactions defendant in error testified: “I sent him back an itemized statement of tbe dates and work performed, and I beard nothing from him after that until tbe 27th day of January. Him and Mr. Ringo come to my place and told me if I would come back to tbe bouse be would give me a check for part of tbe money that was due me. I came back and be gave me a check and checked tbe statement I gave him and said there was no difference, and said if I would be in Omaha on tbe following Saturday be would give me my money in full for tbe account.” The foregoing-statement is corroborated by Mrs. Kirkpatrick, tbe wife of defendant in error, who was present during tbe interview mentioned, and who testified that Mr. Hendrix at that-time acknowledged tbe itemized statement then in bis possession to be correct. Tbe foregoing evidence, although controverted by tbe plaintiff in error, was evidently accepted as true by tbe jury, and tbe verdict is conclusive upon that issue. Tbe only question for determination is, therefore, whether tbe facts proved are sufficient in law to warrant tbe finding of a settlement between tbe parties. An account stated is, as said by this court in McKinster r. Hitchcock, 19 Neb., 100, “an agreement between persons who have bad previous transactions, fixing tbe amount due in respect to such transactions.” In Claire v. Claire, 10 Neb., 54, it was said by Judge Lake that “Tbe simple rendering of an account between parties and agreeing upon tbe amount due are sufficient facts on which to 672 maintain an action.” Although many cases go to the extent of holding that by the mere failure to object to an account rendered it becomes a liquidated and unimpeachable demand, the sound rule is believed to be that such fact is admissible as an acknowledgment of the correctness thereof, the weight or sufficiency of such proof being a question of fact to be determined by the jury. (Chisman v. Count, 2 M. & G. [Eng.], 807; Toland v. Sprague, 12 Pet. [U. S.], 300; Guernsey v. Rexford, 63 N. Y., 631; Sharkey v. Mansfield, 90 N. Y., 227.) But whichever view we may adopt, it is clear that the finding in this case is fully warranted by the evidence, and that the judgment should be Affirmed.