Ah Gett v. Carr

McLAUGHLIN, J.

The defendants prosecute this appeal from a judgment against them and from the order denying their motion for a new trial. The action is based on two accounts stated. One of these accounts was stated with plain

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tiff and the other with one Ah Teet, for whom plaintiff acted in making the settlements hereinafter referred to. The statement of the accounts was admitted, and the principal question presented involves the sufficiency of the evidence to sustain the verdict on the issue of payment. The evidence was conflicting, and in stating the substance thereof we will, as in duty bound under well-settled rules, indulge every intendment in support of the verdict by assuming the truth of evidence tending to support it.

The testimony of plaintiff shows that he had been working in the mine owned by defendants for many years and had made repeated settlements with them. Up to the time of the settlement out of which this controversy arose, he had never given nor been requested to give a receipt. All previous settlements had been made at his cabin near the mine. He and his assignor, one Ah Teet, had been working in the mine for some time, and plaintiff, acting for both, as he, admittedly, had authority to do, was insisting on a settlement. Contrary to the unvarying custom which had been followed for years, he was told to bring his book to the Carr house, where the settlement would be made. When he reached the house the defendant, Mary E. Carr, her son Charles and nephew Homer Robbins were there. As he went in Robbins left the house for the ostensible purpose of filing some saws. Mrs. Carr remained in her bedroom, and plaintiff and Charles Carr were seated near a table in the dining-room. A settlement of both accounts was reached, and the amount due to each of the Chinamen agreed upon. The plaintiff was then requested to sign receipts, which were written in a memorandum book carried by Charles Carr. The request was unusual, but plaintiff signed both receipts. Immediately after this was done Charles Carr left the house and remained outside for a while. Upon his return he procured a sack of coin from his mother and counted out the two sums previously agreed upon, at the same time saying to plaintiff: ‘ ‘ That is your money. ’ ’ Thereupon, and before plaintiff had touched the money which was lying on the table, a masked robber with a pistol appeared in the doorway and said it was his money. The plaintiff attempted to escape from the house, but was kicked back by the intruder, whereupon he sought refuge in Mrs. Carr’s bedroom. During his stay in the bedroom he heard two