Barbash v. Pitt , 48 Nev. 108 ( 1924 )

Plaintiff can succeed upon case made by his complaint and not upon different one. His evidence must prove substance of issue tendered by his pleading or he will fail no matter what else he may prove. Bremmerman v. Jennings, 101 Ind. 253; 21 R.C.L. 609. Plaintiff cannot, against objection, recover upon theory essentially different from one alleged. Grentier v. Fehrenschield, 68 P. 619.

We had right to assume we were to defend upon account as stated. Our defenses were that charges were incorrect and payments credited were little more than half of payments actually made. To meet our defense respondent brings up account against third party, in no way interested in account sued upon, on ground Taylor, who was member of two distinct partnerships, did, and could legally, instruct assignor to credit money of appellants to debt of the other partnership. A partner has no such authority. 20 R.C.L. 884. Uncontradicted testimony shows application of credits was directed by appellants so that work could be completed upon each separate contract so that money could be drawn from State as contracts were completed. Appellants had employed respondent's assignor directing him to keep separate account of work, which he did, and was paid by various parties' checks, giving credit as directed by manager of appellants. No objection to this was made until time of trial. So far as it was a matter of accounting, it was between defendants themselves.

Merely rendering an account is not enough to make it an account stated. 1 C.J. 680. The account is not conclusive, but is open to explanation for errors and omissions. Roberts Shoe Co. v. McKim, 34 Nev. 191.

After creditor has made application of the payment, it cannot be altered except by mutual consent. Where debtor receives account applying payments in certain way, he is estopped from thereafter questioning application made by creditor. 30 Cyc. 1239.

OPINION This action was brought by the plaintiff as assignee of a claim of L. Little against W.C. Pitt, P.A. Quigley, A.L. Bachrodt, and D.B. Taylor, as the Pitt-Taylor Syndicate, to recover judgment in the sum of $4,094.84 for services performed by Little in hauling gravel, sand, cement, and other supplies for the defendants to be used by them upon what is known as contract No. 29A, on the Carson-Reno highway. The defendants filed their answer to the complaint admitting that they executed the contract mentioned; that Little rendered certain trucking services in hauling supplies, but denied that services were rendered to the extent and of the value claimed; and allege that Little was fully paid for all of the services rendered.

Defendants pleaded affirmatively that at a date mentioned an account was stated between the parties whereby it was found that the defendants were indebted to Little in the sum of $870.65, and that that sum was paid to and accepted by Little in full settlement of the amount due from the defendants.

The case was tried to the court without a jury. Findings of fact were made and judgment rendered favorable to the plaintiff. A motion for a new trial having been denied, the defendants have appealed. Numerous errors are assigned, but we do not deem it necessary to, consider each of them.

The evidence in this case has reference to three separate contracts with the state for the construction of portions of highway. One of these contracts is the one already mentioned, another is referred to as the "Lakeview" contract, and the third is designated as the "Lovelock" contract. The Lovelock contract was performed by the Valley Construction Company, which was composed of one Barber and D.B. Taylor. Though this contract was entered into between the state highway department and defendant P.A. Quigley, it appears from a contract in the record that he did so in behalf of the Valley Construction Company, and that he had absolutely no interest in the contract, and that it was assigned to them. D.B. Taylor, who was one of the members of the Valley Construction Company and its manager, was also a member of the Pitt-Taylor Syndicate and for quite a period and until some time in 1921 was its manager. It also appears that several checks were drawn by the Pitt-Taylor Syndicate payable to Little, which he cashed and credited to his claim for services rendered to the Valley Construction Company upon its Lovelock contract. It is contended upon the part of the defendants that these payments should have been credited to them instead of to the Valley Construction Company. If this contention is correct, it is clear that the judgment must be reversed.

Little testified that when Mr. Taylor asked him to go to Lovelock to look over the situation there with a view of performing services in connection with the completion of the Lovelock contract, he knew that that contract was held by the Valley Construction Company, but that he did not know who composed that company. He further testified that the payments made by the checks of the Pitt-Taylor Syndicate, and which were credited to his claim against the Valley Construction Company, were so credited pursuant to instructions from Mr. Taylor. Page 69 of the record shows that Little testified that it appeared from sheet 2 that five Pitt-Taylor Syndicate checks were listed in a certain way according to instructions from Taylor. He then testified:

"Q. Then the checks are not correctly listed, are they, Mr. Little? A. They are listed according to the way I was instructed to list them by Mr. Taylor.

"Q. You were instructed to list them by Mr. Taylor? A. Yes, sir.

"Q. Why did you fail to list them in that manner on the statement you rendered to the Pitt-Taylor Syndicate in September, even, in 1921? A. Because I went back — when I had a conversation with Mr. Taylor and he told me to go back and change my records.

"Q. Oh, then you changed your records after September, 1921; is that correct? A. I don't know just when it was."

Though Mr. Taylor was a party defendant in the action, he did not appear at the trial and testify and was out of the state. No one testified that he had any authority to authorize Little to credit the Pitt-Taylor Syndicate checks to the Valley Construction Company indebtedness. The witnesses on the part of the defendants testified positively that there was no authorization for such action, and that they did not know it was being done. This evidence is borne out by the fact that when a statement was rendered by Little to the Pitt-Taylor Syndicate in September, 1921, he changed his own records. There is not a particle of evidence in the record of any authorization on the part of the Pitt-Taylor Syndicate to credit their money to the payment of the debt of another — Valley Construction Company.

We are clearly of the opinion that the trial court erred in not giving the defendants full credit for all payments made by them. For this reason the judgment and order must be reversed. We need not consider other alleged errors.

Judgment reversed.

ON COSTS June 17, 1925. 236 P. 1101.