Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

03/07/58 IRA E. MEAGHER v. ALBERT C. KAVLI

March 7, 1958

IRA E. MEAGHER, JR., AND OTHERS, CO-PARTNERS D.B.A. MEAGHER, GEER, MARKHAM & ANDERSON,
v.
ALBERT C. KAVLI, INDIVIDUALLY AND D.B.A. KAVLI REALTY COMPANY, AND OTHERS



Action in the Hennepin County District Court wherein plaintiffs sought to recover attorneys' fees for services rendered, in which action they joined as defendants Albert C. Kavli, individually and d.b.a. Kavli Realty Company, Edward L. Kavli, individually and d.b.a. Kavli Realty Company, Albert C. Kavli and Edward L. Kavli, co-partners d.b.a. Kavli Realty Company, Edward L. Kavli d.b.a. Lake Shore Company, and Lake Shore Company, a corporation. The case was tried before Leslie L. Anderson, Judge, and a jury, and at the close of the evidence the court directed a verdict for plaintiffs for $1,738.75. Defendants appealed from an order denying their motion for a new trial.

Nelson, Justice.

SYLLABUS BY THE COURT

Pleading -- consistency of claims joined.

1. There is no requirement under the new rules, such as there was under the code, M.S.A. 1949, ยง 544.27, that the causes joined must be consistent. The new rules expressly provide that a party may state as many separate claims as he has regardless of consistency. Rule 8.05(2) of Rules of Civil Procedure.

Account stated -- recovery thereon -- requirements of pleading.

2. For a plaintiff to recover, as upon an account stated, upon written statements or accounts made out and rendered to defendant, he must declare them as such; and if in his complaint he sets out the original transactions, and not the account stated, as the grounds of his action, either party may prove what the original transactions were.

Waiver -- as fact question.

3. Waiver is ordinarily a question of fact for the jury. It is only where there is but one inference which can be drawn from the facts that the question of waiver becomes one of law for the court. However, the general rule seems to be that where different inferences may be drawn waiver must be resolved as a fact question by the jury.

Account stated -- defined -- distinguished from recovery under common count.

4. A plaintiff may under a common count recover on either an implied or an express contract. Whether the contract pleaded in plaintiffs' cause of action is an express or implied contract is a matter which is of necessity concerned with the original transactions. An account stated is something else. An account stated comes into being through an acknowledgment or an acquiescence in the existing condition of liability between the parties. If an account rendered is acquiesced in by the parties and the correctness of the statement is admitted, then the law will imply a promise to pay whatever balance is thus acknowledged to be owing and due, without further proof.

Account stated -- defined.

5. An account stated is an agreement that a statement of account between the parties is correct. The agreement may be implied as well as expressed, and it may be inferred where the statement is rendered by one party and acquiesced in by the other; but, where the creditor renders a statement of account and the debtor protests that it is incorrect, it is needless to say that there is no agreement and no account stated.

Account stated -- defined.

6. If a statement is furnished by one party, and there are certain objections within a reasonable time by the other party, then, of course, the evidence as to acquiescing in the account furnished by silence is out of the case.

Account stated -- defined.

7. There is no arbitrary rule of law which renders an omission to object in a given time equivalent to an actual agreement or consent to the correctness of the account rendered but it is merely competent evidence, subject to rebuttal by circumstances from which counterinferences may be drawn. The weight to be given to the inferences will vary with the circumstances. There can be no hard-and-fast rule.

Attorney and client -- compensation of attorney.

8. An attorney may recover for his services under a common count in general assumpsit, or recovery may be had based on an express contract for a stipulated fee if the terms thereof have been fully performed so that he becomes entitled to the fee. Under our new rules of civil procedure both may be asserted in the same complaint.

Attorney and client -- compensation of attorney -- existence of account stated -- sufficiency of evidence.

9. An attorney and his client may agree to an account rendered by the former for his services and thus state the account of the former. Due, however, to the peculiar relationship that exists between an attorney and his client and because an agreement between them is essentially in a classification peculiar to itself, it is required that opportunity be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.