the property levied on was that directed to be seized and sold by the defendant, it was not error to deny a motion for the direction of a verdict on the ground that one of plaintiff's witnesses testified that the property sold was on the W. 2 of the S. E. 14 of a section of land, instead of on the W. 1⁄2 of the N. W. 4, where the property was located on which the defendant directed the levy to be made. 4. A motion to set aside a verdict and grant a new trial being discretionary with the trial court, is not reviewable on appeal. 5. Where an action on a sheriff's indemnifying bond was dismissed as to the sureties, but continued as to the principal, and there were issues respecting an oral contract of indemnity preceding the bond, it was not error to deny a motion for judgment for defendant notwithstanding the verdict for plaintiff, on the ground that the complaint did not state a sufficient cause of action on the oral contract of indemnity, it being sufficient, counting on the bond, to support the judgment. Appeal from circuit court, Umatilla county; Stephen A. Lowell, Judge. Action by Zoeth Houser against Peter West and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed. This action was originally instituted to recover upon a bond given to the plaintiff, as sheriff, by defendant and his sureties, to indemnify him against any liability that he might incur in selling two stacks of wheat hay at the request and by the direction of defendant, under an execution issued by his direction against the property of Charles Campbell. After levy, Campbell's wife claimed the property; whereupon plaintiff demanded indemnity, and the bond sued on was eventually given. The property was sold pursuant to the execution, and the proceeds paid to defendant. Subsequently, Mrs. Campbell sued the plaintiff, and recovered judgment for the value of the property, which he satisfied, and this action is prosecuted for his reimbursement. Three trials of the cause have been had. At or prior to the second, the action was dismissed as to the sureties, and left to proceed against West, who denied that the levy was made in pursuance of his direction, plaintiff's allegations of his refusal to sell unless indemnified, the agreement to indemnify, the giving of the undertaking, and the conditions set out. And, as a separate defense, he avers that he directed the plaintiff to levy upon two certain stacks of wheat hay upon the W. 1⁄2 of the N. W. 4 of section 14; that the plaintiff levied thereon in accordance with instructions, and sold them under the writ,all prior to the giving of the undertaking, which, when executed, was without consideration and void. The reply admits the sale of the property before the execution of the undertaking, but alleges that West, at the request of the plaintiff for indemnity, first deposited county scrip therefor, but subse quently withdrew it, and gave the undertaking in its stead. Peter West, in pro. per. M. A. Butler, for respondent. WOLVERTON, J. (after stating the facts). The errors relied upon for reversal are four in number: (1) The admission of evidence having a tendency to establish prior and contemporaneous agreements between the parties to the action; (2) the overruling of the appellant's motion for an instruction to the jury to return a verdict for him; (3) the overruling of his motion for a new trial; and (4) the overruling of his motion for judgment in his favor notwithstanding the verdict. In the course of the trial much testimony was offered by the plaintiff, and admitted over objection, detailing circumstances and transactions leading up to the execution of the bond, from which it was elicited that, upon demand therefor, West deposited some county scrip with plaintiff under an agree ment that the same should be held as security against liability, but subsequently took it up and substituted the bond. The objection to this testimony now insisted upon is that it details the conversations and negotiations had leading up to the giving of the undertaking, and consequently tends to establish previous and contemporaneous understandings and agreements, other than the undertaking upon which recovery is sought. The manner of inquiry, however, was but a natural outgrowth of the issues tendered. There was a denial that plaintiff required indemnity, and of all the alleged transactions leading up to and even of the giving of the undertaking itself and its conditions, so that it became essential to establish all these matters by proof; and, while the testimony produced may have had a tendency to show that prior and contemporaneous agreements had been arrived at, they were all by way of inducement, aud terminated in the obligation sued upon. A circumstance relied upon in reinforcement of the objection is that near the close of the trial, and while the testimony was being taken, the plaintiff's counsel made a statement to the effect that they were not relying on the bond at all, and only sought to introduce its contents for the purpose of proving the contract between plaintiff and West. Counsel, however, explains the language as intended to convey the idea of a waiver of the bond in so far as it concerned the sureties only. It may be recalled, in this connection, that the action at a former trial had been dismissed as to the sureties, and the pleadings somewhat remodeled. Furthermore, the bond had been lost, and the plaintiff was seeking to prove its contents, so that counsel's explanation is in accord with their apparent theory of the case as it stood at that stage of the controversy. In this view there would seem to have been no waiver of the bond, as the foundation of the action against West, by the language employed. We do not think, therefore, the objection is well taken. The motion by which it is sought to have the court to instruct the jury to find a verdict for the defendant is based upon the cir cumstance that one of plaintiff's witnesses testified that the property sold under the execution was upon the W. 2 of the S. E. 14 of section 14, instead of upon the W. of the N. W. 4, where the property was located, upon which the defendant directed the plaintiff to levy. There was ample evidence in the record, however, from which the jury could conclude that the property levied upon and sold was the same that the defendant directed to be seized for the satisfaction of the execution, and the jury having passed upon the matter precludes further inquiry. The third assignment involves a motion to set aside the verdict and for a new trial. The propriety of granting such a motion rests within the sound discretion of the trial court, and its judgment with reference thereto is not reviewable here. This has been held so often that it is only necessary now to state the rule without further elaboration. The motion for judgment notwithstanding the verdict must necessarily be based upon the pleadings. All that is urged in that connection is that the complaint does not state a cause upon the oral contract. It is sufficient, however, counting upon the bond or undertaking, to support the judgment, and the motion is therefore without merit. Affirmed. (38 Or. 578) CRAWFORD ▼. HUTCHINSON et al. (Supreme Court of Oregon. June 10, 1901.) ACCOUNT STATED-ATTORNEY AND CLIENTDEMANDS NOT INCLUDED - INDEPENDENT TRANSACTIONS-EFFECT-SET-OFF FAILURE TO PLEAD-DIRECTION OF VERDICT. 1. Where an attorney made out and delivered to his client a statement of his account for services rendered, showing an itemized schedule of debits and credits and the balance due, such account became an account stated, unless objected to within a reasonable time. 2. What constitutes a reasonable time within which a debtor may retain an account without objection, on pain of having it considered an account stated, is a question of law, where the facts are clear and undisputed. 3. An attorney made out and sent to his client an itemized account for services, showing a schedule of debits and credits and the balance, and containing a notation at the end, "Your account for hay furnished is not in- cluded in the above, as I have been unable to get a statement of the amount." Held that, since such notation had no reference to the plaintiff's professional employment, and arose out of transactions entirely independent of the items set forth in the account, the fact that the set-off for hay was not determined or considered did not preclude such account from becoming an account stated, after the lapse of a reasonable time, without the client's objection thereto. 4. Where, in an action on an account stated, the account showed that the defendant might have an offset thereto, but no offset was pleaded, it was not error to direct a verdict for the plaintiff. Appeal from circuit court, Union county; Robert Eakin, Judge. Action by T. H. Crawford against James H. Hutchinson and others. From a judgment in favor of plaintiff, defendants ap peal. Affirmed This is an action upon an account stated. The facts are that some time prior to December 14, 1899, the plaintiff, a practicing attorney at Union, had been retained and employed in his professional capacity by the defendants, who reside in the same town. On the date mentioned he made out and forwarded to them by mail the following statement of his account. "Union, Oregon, December 14th, 1899. "Hutchinson Bros., to T. H. Crawford. To attorney fee foreclosure suit H. Bros. v. Shelton, Phy, et als... To attorney fee H. Bros. v. Shelton..................... To attorney fees Baker Co. v. J. H. H.... To drawing deed for light plant... To attorney fees Corbett v. J. H. H.... Total Contra. By J. F. Phy note............................................................ $ 500 00 150 00 100 00 250 00 50 00 50 00 2 50 2.50 2.50 50 00 100 00 50 00 75 00 200 00 150 00 $1,731 50 By amount realized on Cellier judgment.. By amount realized on Schneider judgment.. Total Balance due 20 00 650 00 100 00 $1,261 00 470 50 $1,731 50 "Your account for hay furnished is not inIcluded in the above, as I have been unable to get a statement of the amount. I desire to go below about next Monday, and would like very much if you can call and let us settle matters up before I go. "Yours, very truly, T. H. Crawford." Although the defendants received this statement a day or two after it was mailed, and frequently thereafter met the plaintiff, and had more or less conversation with him on business and other matters, and, in one or two instances at least, discussed the alleged balance due, and its payment, they made no objection to the account, or any item thereof. This action was commenced on the 20th day of September, 1900. The complaint is in the form usual in an action on an account stated. The answer, after de nying the allegations of the complaint, affirmatively alleges that for some time prior to the 14th day of December, 1899, plaintiff and defendants had an open, mutual, and current account, and that there has never been any settlement or accounting between them. The trial court held that, owing to the failure of the defendants to object to the account as rendered by the plaintiff, it became an account stated, and directed a verdict for the plaintiff. From the judgment which followed, the defendants appeal. Leroy Lomax, for appellants. C. E. Cochran and F. S. Ivanhoe, for respondent. BEAN, C. J. (after stating the facts). We have had occasion in several instances to consider the question of an account stated, and the doctrine of our decisions is that an account rendered and delivered to the debtor, exhibiting the creditor's demand, becomes an account stated, unless objected to within a reasonable time, and that what constitutes a reasonable time is a question of law for the court when the facts are admitted, or are clear and undisputed. Truman v. Owens, 17 Or. 523, 21 Pac. 665; Holmes v. Page, 19 Or. 232, 23 Pac. 961; Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086; Howell v. Johnson (Or.) 64 Pac. 659. This rule was formerly applied to accounts between merchants only, but in most of the states of this country it has been extended to embrace every kind of transaction in which the relation of debtor or creditor is involved. Fleischner v. Kubli, supra; 22 Cent. Law J. 76; Spellman v. Muehlfeld (N. Y. App.) 59 N. E. 817. It is clear, therefore, that by reason of the silent acquiescence of the defendants the account rendered by the plaintiff to them became a stated account, which can be opened only for fraud, error, or mistake, unless the fact that it did not include the hay furnished by the defendants would prevent it from becoming such an account. It is insisted that an account stated exists properly only where the accounts on both sides have been examined, and the balance has been admitted as a true balance between the parties, or where a statement has been rendered, including all the mutual accounts between them within the knowledge of the creditor, and has not been objected to within a reasonable time. But the failure to include a counterclaim arising out of some independent transaction does not necessarily prevent an account rendered from becoming an account stated as to everything embodied therein, if no objection is made thereto within a reasonable time. Mr. Justice Clopton says that: "If the account of the plaintiff alone be stated showing the amount due, an acknowledgment or admission of such account is sufficient to constitute it an account stated, though the defendant may have counterclaims which are not deducted." Ware v. Manning, 86 Ala. 238, 5 South. 682. And in Filer v. Peebles, 8 N. H. 226, it was held that, where an account was stated by the parties, and an amount agreed upon as due plaintiff within certain dates, but the defendants claimed something on a prior ac.count, there is a sufficient stating of account for the amount named, subject only to the right of the defendant to set off any prior claim not included therein. Again, in White v. Whiting, 8 Daly, 23, it was held that, where an account has been stated between two persons, embracing all the items of a particular transaction, but the debtor refuses to pay unless the creditor executes a release embracing other transactions as to which there is some dispute, the account is so far conclusive against the debtor in an action to recover the balance as to cast upon him the burden of showing error or mistake therein. The rule upon this point seems to be that, where the correctness of the account presented is admitted, either expressly or by failure to, object within a reasonable time, it will amount to an account stated as to everything included therein, although the person so acknowledging its accuracy may have an offset thereto arising out of some independent transaction. But, while one part of a transaction is left open for further adjustment or litigation, another part cannot become an account stated. The unconsidered demand or offset must be an independent matter, having no connection with or relation to the items which are resolved into a. sum certain by the express or implied agreement of the parties. Weigel v. Steel Co., 51 N. J. Law, 446, 20 Atl. 67. The memorandum in regard to the hay furnished had no reference to plaintiff's professional employment, and did not, therefore, in our opinion, prevent the statement rendered from becoming an account stated. As no offset was pleaded, there was no error in directing a verdict for the plaintiff, and the judgment is affirmed. 1. Where respondent failed to incorporate into the transcript on appeal other portions of a charge showing, as he alleged, that an erroneous instruction was rendered harmless by a subsequent charge, he could not insist on appeal that, as the bill of exceptions fails to show that the instruction complained of was the only one given by the court, errors, if any, will be presumed to have been rendered harmless by other portions of the charge. 2. In an action by a broker to recover commissions lost by reason of his principal's sale of the property in alleged violation of the contract, the complaint, alleging plaintiff's exclusive right to procure a purchaser, did not allege that such right was to continue for any particular time, but averred that the contract was entered into July 1, 1900, and that on the 14th of that month, "and while said contract between plaintiff and defendant was still in force, the plaintiff procured a purchaser," etc. Held, that defendant, after a demurrer to the complaint had been overruled, having answered over, thereby waived the defective averment in the complaint, the allegation, though imperfect in form, being sufficient to support a judgment in favor of plaintiff. 3. In an action by a broker for commissions lost, the complaint alleged that defendant gave plaintiff the exclusive right to sell the property for $3,000, defendant reserving only the right to sell the property himself for not less than that sum; that plaintiff procured a purchaser, who was ready and able to purchase for that sum, but that defendant previously sold the property for $2,500. Defendant admitted the contract, except that he bound himself not to sell for less than $3,000, which he denied, and admitted that he sold the land as alleged. Held, that an instruction that, if there was a contract between the parties by which plaintiff was to have the privilege of selling the land for $3,000, but reserving to defendant the right to sell for not less than $3,000, and pursuant to the agreement plaintiff procured a purchaser, "defendant not having sold the land," then plaintiff would be entitled to recover, was erroneous, as based on the hypothesis that defendant had not sold the land, which was not in issue, defendant having admitted that he sold the land; the instruction thereby amounting to a practical direction of a verdict for defendant. in a judgment for the defendant, and the plaintiff appeals. F. M. Saxtoil, for appellant. William Smith, for respondent. The MOORE, J. (after stating the facts). court instructed the jury that: "If there was a contract between the plaintiff and the defendant whereby plaintiff was to have the privilege of selling defendant's land at $3.000, and was to have five per cent. commission on such sale, but reserving to defendant the right to himself sell, provided he should not sell for less than $3,000, and pursuant to that agreement plaintiff did procure a purchaser to defendant ready, able, and willing to purchase at a price and on terms satisfactory to the defendant, defendant not having himself sold the land, then plaintiff would be entitled to his commission." The Appeal from circuit court, Baker county; plaintiff's counsel having excepted to this Robert Eakin, Judge. Action by M. S. Hughes against H. E. McCullough. From a judgment in favor of defendant, plaintiff appeals. Reversed. This is an action to recover a commission as a real-estate broker. It is averred in the complaint, in substance, that about July 1, 1900, the defendant gave plaintiff the exclusive right to sell a certain tract of land which the former then owned in Baker county, and agreed to pay him 5 per cent. of the purchase price if he could procure a purchaser who would give $3,000 therefor, the defendant reserving the right to sell it for not less than that sum; that about July 14, 1900, and while said contract was still in full force, the plaintiff procured a purchaser who was ready, able, and willing to buy said land, and to pay therefor the sum of $3,000; that the defendant was unable to consummate the sale thereof to the purchaser so procured in consequence of his having on that day sold and conveyed it to another person for the sum of $2,500; that by reason of the contract and of the premises the defendant is indebted to plaintiff in the sum of $150, no part of which has been paid. The answer admits that the parties entered into the agreement providing for the sale of the premises, and prescribing the commission to be paid therefor as alleged, but denies that plaintiff was given the exclusive right to sell the land, or that the defendant was not to sell it for less than $3,000, or that the plaintiff procured a purchaser who was ready, able, or willing to buy it, or to pay said sum therefor; and avers, in effect, that about July 14, 1900, the defendant offered plaintiff the sum of $150 if he would secure a purchaser who would pay $3,000 for said land; that the defendant sold said premises, and immediately notified the plaintiff thereof, and that the latter never at any time secured a purchaser therefor. The allegations of new matter in the answer having been denied in the reply, a trial was had, resulting instruction, it is contended that the court erred in giving it. As a preliminary matter, however, it is insisted by defendant's counsel that the bill of exceptions fails to show that the instruction complained of was the only one given by the court, and that, if any error was committed in this respect, it must be presumed to have been rendered harmless by other portions of the charge; and that the plaintiff does not allege that the contract relied upon gave him any specified time in which to secure a purchaser, nor does he aver that his right to sell the land was coupled with any interest therein, from which it must be inferred that the defendant possessed the power to revoke the agency at will; and, having done so by selling the premises, the complaint does not state facts sufficient to constitute a cause of action, and hence the appeal should be dismissed. In Nickum v. Gaston, 24 Or. 380, 33 Pac. 671, 35 Pac. 31, it was held that, if a single instruction stated an erroneous proposition of law, it was prejudicial, unless shown to be harmless; to rebut which it was incumbent upon the respondent to incorporate into the transcript other portions of the charge showing that the error assigned was rendered harmless or removed. To the same effect. see Payne v. Railroad Co. (Wash.) 46 Pac. 1054, overruling Navigation Co. v. Galliher, 2 Wash. T. 70, 3 Pac. 615, relied upon by defendant's counsel. The defendant not having observed this salutary rule, the instruction complained of is vulnerable to any legal objection that can be urged against it. It is not alleged in the complaint that the plaintiff's exclusive right to procure a purchaser of the real property was to continue for any time, but it is averred therein that the agreement was entered into July 1, 1900, and that on the 14th of that month, "and while said contract between the plaintiff and defendant was still in force, the plaintiff procured a purchaser," etc. This allegation, though imperfect in form, would be sufficient to support a judgment in favor of the plaintiff; for the defendant, after his demurrer to the complaint had been overruled, answered over, thereby waiving the defective averment in the pleading. Wells v. Applegate, 12 Or. 208, 6 Pac. 770; Olds v. Cary, 13 Or. 362, 10 Pac. 786; Drake v. Sworts, 24 Or. 198, 33 Pac. 563; Savage v. Savage, 36 Or. 268, 59 Pac. 461. Considering the exception to the instruction complained of, it will be remembered that the answer admits the execution of the agreement by the parties; hence the issues to be tried were: (1) Did the defendant reserve the right to sell the land for less than $3,000? and (2) did the plaintiff procure a purchaser who was ready, able, and willing to buy it, and to pay therefor the sum of $3,000? It is stated in the bill of exceptions, in effect, that the plaintiff introduced testimony tending to prove that his right to sell the land was exclusive, except that defendant reserved the right to sell it for $3,000, but that it was expressly agreed that he would not sell it for less than that sum; that on July 14, 1900, the plaintiff produced a purchaser, who was able, ready, and willng to buy the real property, and to pay therefor the sum of $3,000, and so notified the defendant, who was unable to consummate the sale with said purchaser in consequence of his having on that day, but prior thereto, conveyed the land to another person for the sum of $2,500; that the plaintiff had no knowledge of such sale until after he had procured said purchaser; and that the defendant prior thereto had never given him any notice of the termination of their agree ment, or paid him any part of the commission. The defendant admitted that he sold the land for $2,500, and introduced testimony tending to prove that in the agreement entered into with the plaintiff he had reserved the right to sell the premises, without any restriction as to price, and that upon such sale he immediately notified the plaintiff thereof, and informed him of the price received, but not until after the plaintiff had notified him that he had procured a purchaser who would pay the sum of $3,000. It is alleged in the complaint and admitted in the answer that the defendant sold the land, and hence there was no issue upon that subject; notwithstanding which the court placed the plaintiff's right of recovery, in its instruction, upon the hypothesis of the defendant not having sold the land. The rule is well settled in this state that an instruction outside the issues is erroneous, and constitutes reversible error. Marx V. Schwartz, 14 Or. 177, 12 Pac. 253; Woodward v. Navigation Co., 18 Or. 289, 22 Pac. 1076; Navigation Co. v. Siglin, 26 Or. 387, 38 Pac. 192; Pearson v. Dryden, 28 Or. 350, 43 Pac. 166. The instruction complained of was not only erroneous for this reason, but, the defendant, in his answer and as a witness, having admitted that he sold the land, the court, in effect, told the jury to find a verdict in his favor. It follows that the judgment is reversed, and a new trial ordered. (39 Or. 364) CROWN POINT GOLD-MIN. CO. v. CRISMON et al. 1 (Supreme Court of Oregon. June 10, 1901.) MINING CLAIM-LOCATION-MARKING BOUNDARIES TRIAL-REFERENCE-ACTION-EJECT MENT-FORFEITURE OF CLAIM-EVIDENCESUFFICIENCY. 1. Where plaintiff's grantors located a mine in 1889, but did not mark the boundaries on the ground until six months afterwards, defendants, who relocated in 1899, could not complain, as a subsequent locator cannot object if the boundaries are marked before his location. 2. Sess. Laws 1893, p. 26, providing that on a hearing by a referee all documentary evidence shall be incorporated in his report, does not require all such evidence to be offered before the referee, and in a contest over a mining location plaintiff was entitled to put the documentary evidences of his title in evidence on the final hearing, though they had not been offered before the referee. 3. Where defendants, deeming a mine forfeited by plaintiff, located the same ground, and plaintiffs subsequently commenced work thereon, and a few days later defendant also began work, plaintiff could maintain an action under Hill's Ann. Laws, § 504, giving an action in equity to one in possession of real estate to settle an adverse claim thereto, and he need not resort to ejectment. 4. On an issue as to whether or not plaintiff had performed the annual assessment work on a mining claim, it appeared that it employed a person who testified that he did 20 days' work in the tunnel, of the reasonable value of $5 per day, but could not say how far he extended the tunnel. Defendants' witnesses testified that, from their knowledge of such person's employment and the appearance of the mine and dump, he had not performed the requisite amount of work, and that there was no perceptible change in the tunnel; but there was evidence that, from the condition of the walls of the tunnel at the time such witnesses inspected it, it would have been impossible to tell the amount of work done. One witness testified that in 1897 he measured the tunnel by stepping it, to ascertain whether the requisite amount of work had been done that year, and that it measured 50 feet. No work had been performed since, except by the person so employed by plaintiff, and the tunnel afterwards measured 70 feet. Held to sustain a finding that there was no forfeiture. Appeal from circuit court, Baker county; Robert Eakin, Judge. Bill by the Crown Point Gold-Mining Company against S. C. Crismon and another to determine the title of a mining claim. From a judgment in plaintiff's favor, defendants appeal. Affirmed. On January 1, 1889, A. H. Huntington, J. C. Young, and A. Olsen posted a discovery notice on the Crown Point quartz claim in Baker county, and during the following summer marked the boundaries thereof on the ground so that they could be readily traced. Their interest in the claim was subsequently sold and transferred to the plaintiff corporation. On July 1, 1899, the defendants, deeming the mine forfeited on account of failure to perRehearing denied July 8, 1901. |