Robinson v. Dugan

BELCHER, C. The plaintiff brought this action to recover the sum of $814.50 upon an account alleged to have been stated between himself and William Robinson, in October, 1891. William Robinson died intestate in March, 1892, leaving a small estate, and thereafter the defendant was duly appointed and qualified as administrator thereof. The usual notice to creditors was published, and within the time prescribed the plaintiff presented his claim to defendant as such administrator for allowance, and the same was allowed and approved for $4.50 and disallowed as to the balance. The answer of defendant denied that at the time named, or at any other time, an account was stated, or settled, or agreed to, by or between the plaintiff and said intestate, or that the said estate was indebted to the plaintiff in any sum, other than the $4.50, which was allowed; and averred that all and every indebtedness or liability on the part of said intestate to the plaintiff, except the said $4.50, had been fully paid and discharged before the death of said intestate.

The ease was tried by the court without a jury, and among other things it found: “ (5) That there was no account stated as between the plaintiff and said deceased, and that said William Robinson, deceased, was not indebted to said plaintiff, and his estate is not liable to plaintiff in any sum or amount other than said $4.50, approved and allowed by defendant as administrator, as aforesaid, and that none of the allegations contained in paragraph 1 of plaintiff’s complaint are true.”

And as conclusions of law from- the facts the court found: “(1) That plaintiff is entitled to be paid, in due course of administration, the sum of $4.50, approved and allowed by said defendant before the commencement of plaintiff’s action herein. (2) That defendant’s intestate, William Robinson, [474]deceased, was not at the time of his decease indebted to said plaintiff in any sum or amount other than said $4.50. (3) That defendant is entitled to judgment,” etc.

Judgment was accordingly entered that the plaintiff be paid, in due course of administration, the $4.50 allowed him, and that his action be dismissed, and defendant recover his costs. From this judgment, and an order denying his motion for a new trial, the plaintiff appeals.

It is contended that the judgment should be reversed, because the finding above quoted was not justified by the evidence, and portions of it were inconsistent with other portions thereof, and because the court erred in making certain rulings on the admission of evidence. To show that an account was stated between himself and the decedent, plaintiff introduced in evidence a paper (marked “Plaintiff’s Exhibit No. 1”) which was proved to be in the handwriting of decedent, and was as follows: