O'Day v. Spencer

JOHNS, J. 1. As the case was tried by the court without a jury, its findings of fact are as binding and conclusive upon this court as a verdict, and must be sustained if they are within the issues and there is any evidence to support them: Wheelock v. Richardson, 91 Or. 87 (178 Pac. 377); Puffer v. Badley, 92 Or. 360 (181 Pac. 1, 4 A. L. R. 1561). There is no dispute as to the first cause of action. 2. The trial court received evidence tending to show that the charges specified in the second and third causes of action were not included or embraced within the stated account upon which the first cause is founded. [77] That ruling was correct. The law is well stated in 1 Cyc. 453, as follows: “An account stated or settled is prima facie to be taken as a settlement of all valid items of debit and credit existing between the parties iat the time of its statement. But this presumption does not extend to a cause of action which had not accrued at the time of the statement of the account. Nor will the parties be conclude^ by such presumption as to matters which were not contemplated by them, or which were not in fact included in the statement or settlement, though they existed at the time, but the presumption will be destroyed when the details of the settlement show that the matter in controversy was not included.” In Normandin v. Gratton, 12 Or. 505 (8 Pac. 653), this court, speaking by Mr. Justice Lord, said: “The question asked and answered by the witness was evidence tending to rebut the presumption of the settlement alleged, including all demands between the parties, and was admissible. It is conceded that a settlement between the parties is prima facie to be taken as a settlement of all demands, but is not conclusive, and is no bar to a recovery for matters not included in the settlement, though existing at the time: Nichols v. Scott, 12 Vt. 47; Ryan v. Rand, 26 N. H. 15. The object of the question was to show that the matter referred to was not included in the account stated, and thus rebut the presumption that it included all previous transactions: Whart. Ev., § 1331, notes. As such the question was admissible, and the objection was properly overruled.” 3. As to the second cause of action the court received parol evidence that certain entries in his book of accounts were in the handwriting of the deceased, and that they were made at a certain time and under circumstances stated. It is claimed that such testimony was incompetent. It was clearly admissible under Section 790, L. O. L., which provides as follows: [78] “The entries or other writings of a like character of a person deceased or without the state, made at or near the time of the transaction, and in a position to know the facts stated therein, may he read as primary evidence of the facts stated therein, in the following cases: * * “2. When it was made in a professional capacity, and in the ordinary course of professional conduct. The testimony is clear that the entry was made by the deceased as an attorney, in the ordinary course of his professional business. 4. The defendant claims that Judge O’Day should not have received a fee of $1,000 for his services in the second cause of action; that the deceased represented to him that all of the legal proceedings, including the sheriff’s sale were valid; that he relied upon such representations, but that it has since' been decided that the sheriff’s certificate of sale was void. However, the fact remains that the defendant received and now has the $8,600 from and out of which he agreed to pay the deceased $1,000, and that there is no evidence that he has ever been called upon or will ever be required to refund the money which he received, that he relied upon any representations made to him by the deceased, or that payment for Judge O’Day’s services was to be in the nature of a contingent fee. 5. The third cause of action is for $250 as a fee for legal services rendered by the deceased for the defendant in the case of Elijah Corbett Company against him. From the evidence, it appears that this was important litigation, to which the deceased devoted considerable time in studying the legal questions involved, and prepared and filed an answer. The only evidence as to the reasonable value of such [79] services is the undisputed testimony of attorney Haddock, and the claim of the defense is that the amonnt of that fee was included in the stated account, which contention was overruled by the trial court. As the Circuit Court found in favor of the plaintiff upon all of the material issues and there is competent evidence to support the findings, the judgment is affirmed. Affirmed. McBride, C. J., and Bennett and Harris, JJ., concur.