Fatta v. Catalano

SHAW, J.

In this action plaintiffs sued in

quantum meruit

to recover from defendant a balance for work and labor performed in constructing a house for him at his special instance and request. Defendant answered, denying the allegations of the complaint and, by cross-complaint,

[631]

alleged that after the house was completed there had been an account stated between himself and plaintiffs, wherein it was agreed that plaintiffs were indebted to him in' the sum of four hundred dollars, all of which allegations were denied by plaintiffs, who, however, admitted that Angelo Fatta, one of the plaintiffs, was indebted to defendant in the sum of four hundred dollars, for which defendant held the note of Angelo and a pledge of certain personal property deposited as security for the payment thereof.

The issues were tried by jury, which rendered a verdict in favor of plaintiffs for $350, and in favor of defendant and against Angelo Fatta for four hundred dollars, from the whole of which judgment, and an order denying his motion for a new trial, defendant appeals.

As one ground for reversal the insufficiency of the evidence to justify the verdict is urged. The evidence is sharply conflicting, and while appellant concedes that plaintiffs’ testimony clearly tended to establish the issues found in their favor by the jury, his counsel insist that their testimony is unworthy of credence because of the inconsistencies therein, and, moreover, they were contradicted “by at least six unbiased witnesses.”

[1]

At most, the record discloses a substantial conflict of evidence touching the facts in dispute, as to which the verdict of the jury and order of court denying defendant’s motion for a new trial must be deemed conclusive.

Appellant next contends that where there is an account stated, it is a bar to an action upon the original items thereof. The jury, however, by its verdict found against defendant upon this issue.

[2]

The fact that it found in favor of defendant upon the note made to him by Angelo Fatta cannot be construed as a finding that there was an account stated between defendant and plaintiffs growing out of the transaction under which the house was constructed.