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eBook details

• Title: Callan v. Hample
• Author : Supreme Court of Montana
• Release Date : January 04, 1925
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 55 KB

Description

Submitted April 21, 1925. Work and Labor ? Quantum Meruit ? Services of Expert ? Rules Relating to Master and Servant not Applicable ? Incidental Expenses Recoverable Without Pleading ? Evidence ? Pleadings ? Amendment During Trial ? Departure ? What Does not Constitute ? Continuances ? Refusal ? Nonprejudice ? Appeal ? Judgment ? Modification ? When Proper. Work and Labor ? Professional Man not Servant ? Action for Services ? Incidental Expenses ? Evidence ? Admissibility. 1. The employment of a professional man (expert accountant) does not create the relation of master and servant and is not governed by the rule applicable to such relation; therefore, since such employment may entail the employment of assistants and the outlay of incidental expense money, a contract to pay the expenses thus necessarily incurred may be inferred from the nature of the employment, and evidence that it was necessary and customary to incur such additional expenses was admissible in an action to recover the reasonable value of the services without pleading them. Complaint ? Amendment During Trial ? When not Departure from Original Pleading. 2. Where an amendment of the complaint permitted to be made during trial was immaterial and did not require proof of the existence of additional facts, but the evidence relating thereto was admissible under the original pleading, there was no departure from the cause of action first stated. Same ? Amendment During Trial ? Refusal of Continuance ? Failure to Make Showing of Prejudice ? Effect on Appeal. 3. Refusal to grant a continuance upon amendment of the complaint during trial, held not error where defendant from a bill of particulars furnished him ten months prior thereto had knowledge of the claim incorporated by the amendment and did not make any showing of prejudice suffered by the court's action. Pleadings ? Amendment During Trial ? Discretion. 4. The matter of the amendment of a pleading, at any time, rests within the sound discretion of the trial court, and its action is not cause for reversal of the judgment in the absence of an affirmative showing of abuse of discretion resulting in prejudice. Work and Labor ? Quantum Meruit ? Expert Accountant ? Services of Assistant ? Payment ? Amount Paid Reasonable Value. 5. Where the evidence in an action on quantum meruit by an expert accountant disclosed that plaintiff had paid an assistant two dollars per day, the amount so paid became the reasonable value of the services of the assistant, and refusal to so instruct the jury was error. Witnesses ? Jury Judge of Credibility. 6. The jury is the judge of the credibility of witnesess and it is its province to decide conflicts in the evidence, and unless the testimony of the prevailing party is characterized by such inherent improbability as in effect to destroy it, the supreme court will not interfere. Work and Labor ? Excessive Judgment ? Remand With Direction to Modify, When. 7. Where in an action for services rendered, the plaintiff, an expert accountant was properly entitled to recover but the trial court erred in refusing to limit recovery for the services of an assistant to the amount actually paid by him, to-wit, two dollars per day, and the jury awarded five dollars a day, and the excess in the judgment could readily be determined by mathematical calculation, the judgment will not be reversed and a new trial ordered, but the cause will be remanded with instruction to modify the judgment.

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