Oberndorfer v. Moyer

McOARTT, J., after making the foregoing statement of facts, delivered the opinion of the court. There is a conflict in the evidence on the issues, raised by the affirmative allegations of defendant’s answer respecting the alleged false and fraudulent representations made by plaintiff to defendant to induce him to purchase Lower Mammoth mining stock and the refusal and failure of plain [331] tiff to dispose of said stock a.t a time and in accordance with the alleged orders and directions given by defendant thereby causing a loss to defendant of a sum in excess of the amount sued for in this action. We deem it unnecessary to review in detail tbe evidence introduced on these issues as it would in no way tend to elucidate any of the alleged errors of law assigned, and we fail to see wherein a reproduction of the evidence would be of any value as a guide to the profession in like cases should any arise. It is sufficient to here state that there is ample evidence in the record to support a finding in favor of plaintiff on these issues. Moyer, the appellant, assigns as error the admission in evidence of certain letters which respondent, Obemdorfer, claims' to have written to him in regard to the balance alleged to be due from Moyer to Oberndorfer, and the admission of certain alleged statements containing an itemized account of the various stock transactions between them. Obemdorfer testified that he sent one of the letters containing a statement of the account to Moyer by mail and that the other statement was sent either by mail or messenger but did not remember which. He testified, however, that soon after the letters and statements referred to were sent he met Moyer, who acknowledged that he had received the letters and statements of account, and promised to pay to Obemdorfer the balance therein shown to be due Mm; that on one occasion Moyer wanted him to “knock off somthing” which he, Obemdorfer, refused. to do. Moyer denied having received the letters and statements mentioned, or either of them, and also denied that he on the occasions mentioned by Oberndorfer, or at any other time promised to pay the amount in controversy, or any sum whatever, to Oberndorfer. It will thus be seen that there is a substantial conflict in the evidence on this issue of the case which raised a question of fact for the jury to determine and settle. Appellant, however, contends that, taking the evidence on tMs po.int in the most favorable light for plaintiff, it fails to show that there was an account stated between the parties. In view of the testimony of Oberndorfer hereinbefore referred to, we think this position of appel [332] lant is untenable. Tbe general rule as to wbat constitutes an account stated is tersely, and as we think, correctly stated in 1 Cyc. 364, as. follows: “In general terms where an account is rendered by one person to another showing a balance due from the one to the other and the indebtedness thus expressed is acknowledged to be due by the person against whom the balance appears, or where parties having previous transactions agree upon a balance as due from one to tire other, this will constitute an account stated.” (1 A. & E. Enc. L. [2 Ed.], 427, and cases cited; 13 Enc. Pl. & Pr., 87; 2 Greenleaf on Ev., 126.) The next error assigned is the refusal of the trial court to compel plaintiff to elect upon which of the two counts in the complaint he would proceed to trial. While the decisions on this question are not harmonious, the weight of authority, as well as the better reason, we think, upholds the doctrine that, when a plaintiff has two or more grounds upon which he may have a single cause of action, and there is some uncertainty as to which he would be able to'establish at the trial, he may set forth his claim in different counts, so as to include each and every ground he may have for recovery. (Bliss, Code Pl. 120; 5 Enc. Pl. & Pr., 312; Shaw v. Utah Northern Ry. Co., 6 Utah 253, 21 Pac. 994; Pearson v. Milwaukee, etc., 45 Iowa 497; Whitney v. Railway Co., 27 Wis. 340; Leonard v Roberts, 36 Pac. (Colo. Sup.) 880; Plummer v. Mold, 22 Minn. 15.) Our Code of Civil Procedure is substantially the same as that of California, and the Supreme Court of that state has in a number of well-considered cases declared this same doctrine. (Wilson v. Smith, 61 Cal. 209; Leeke v. Hancock, 76 Cal. 121, 17 Pac. 937; Rucker v. Hall, 105 Cal. 425, 38 Pac. 962; Stockton etc., v. Glens, etc., 121 Cal. 167, 53 Pac. 565; Bernstein v. Downs, 112 Cal. 197, 44 Pac. 557; Leffingwell v. Griffing, 31 Cal. 232.) Appellant cites and relies upon the case of Anthony v. Savage, 2 Utah 466, as decisive of this question. By an examination of that case it will be seen that the defendant, who was indebted to. the plaintiff in a large sum, gave plaintiff several acceptances. Payments were made by defendant on these acceptances, but, having failed to pay all of the accep [333] tances as they became due, tbe plaintiff, in order to avoid tbe effect of tbe statute of limitations, took up tbe acceptances and charged tbe amounts upon its books and credited defendant witb tbe payments be' bad made on tbe acceptances. And tbe complaint in tbat case contained two counts', one for a balance of account for money paid, and tbe other was for an account stated. This court held tbat a suit could not be maintained in tbe case either upon tbe account or upon tbe account stated. In tbe course of tbe opinion it is said: “The proof shows that this balance of account for money was a balance of money due on two certain acceptances, after deducting the payments, The entering of these credits does not make the account mutual.” ' And it was further said: “It is not necessary for this court now to decide whether or not there are any cases in which two counts for the same matter may be embraced in one complaint.” It will therefore, be observed tbat tbe case is clearly distinguishable from the one under consideration. And, further, tbat tbe court did not pass upon and determine tbe question under consideration. Tbe judgment in this case was rendered by tbe court upon motion of plaintiff’s attorneys, and in open court. The fees were paid to tbe clerk and demand was made tbat judgment be entered. In fact tbe plaintiff bad done all tbat tbe statute requires of him to entitle him to have bis judgment entered and docketed. “When a judgment has in fact been rendered, but through some omission of the clerk has not be entered, the court may in proper eases order its entry nunc pro tunc.” (18 Enc. Pl. & Pr., 464 and cases cited. Under tbe circumstances of this case the trial court did not err in ordering tbe judgment to be entered and docketed. Nor do we think tbe court erred in refusing tbe substitute Oberndorfer’s assignee as plaintiff. Section 2920, Ee334 vised Statutes 1898, authorizes an action to be carried on, under circumstances such as are preseáted in this case, either by the original party or his assignee. There are numerous other errors assigned, but we do' not think they are of sufficient importance to warrant discussion. We find no reversible error in the record. The judgment is therefore affirmed, with costs. BARTCH, C. J., and ARMSTRONG, District Judge, concur.