Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-02-11

A"'I = '...- itilSdC4Dil l)l lIIt services per-
formed, a recovery bv the plaintiff upon
proper proof of the services and of their
value. L be sustained. At most, it
would only he a variance between the
pleading and proof which might he dis
regarded unless it misled the defendant
to his Prejudice, which is not pretended.
but counsel for defendant admitted in
open pur below that he was not m,sIed
t-rtu, stats. Sec. 30J3: Sussdorf VS.
$ hni;. - y. y. 3l9.)
Y ,'..r ~. ALLEGATION o! an agreed price,
if thv.~ - 4 :.4l~ro tn prove the agree
nIcnt as TO price, evidence OF vai.l is
comN"tn"t f. t1o purpose of 2 recovery
OF VIVA: ,"' ,-rtlcIc VAS fairly worth. but
not to sustain a recovery beyond the
amount alleged" Livingston VS.. Wag-
ner. A. Pac. Rep. 29l, D New.
"Cnder an allegation of a contract to
pay d specified rate of COMPENSATION
plaintiff may prove a promise to pay
what the services We're reasonably worth
or an implied promise to pay the usual
COMPENSATORY l~.Aobott's Trial Ev. 357
and cases cited.)
Upon the other hand, under a complaint
on a Q4ft'tIn metUU for services, where a
specified contract is proved, filing the
price for service. the stipulated price be
comes the Q"unhtm meruit in the case.
II l~ Y. Ec>5vali, 2 Keys. l52.l
The plaintiff was entitled to recover
ataf,it "a d the ground that the serv-
ices h2 actually been rendered. and af-
ter con.p!etC performance OF an express
contract there IS no reason why a recov-
cry max nol he had upon a complaint on
q"dmt1"t mc5uit, I'd when the opposite
party to the action has not been mislcd
in his defense.
The plaintiff introduced and examined
several Witnesses, having no interest in
the resdlt Of the suil, to prove the decla-
ratlons and conversations made to and
haG with the several witnesses by Mrs
Williams Mcdonald. during and at the
time the plaintiff was engaged III per
forming the alleged services. concerning
the character of york he was performing
for her, the mount OF wages he was to
receive therefor and the terms OF pay
ment, Counsel for defendant objected "a
the evidence on the ground that the 0.her
party to the transaction is dead. The
court overruled the objections and these
several rulings are assigned as error.
The objections were based on the 370th
section of the Civil Practice Act, as
amended, Statutes 1897, p. II.
n Civil Practice Act. Sec. $40. pro-
vides: All persons without exception.
otherwise than as specified in this chap
ter, who, having organs of sense, can per-
ceive, and perceiving can make known
their perception to others, may be wit
nesses in any action or proceeding IN any
court of this State. Facts which by the
common law, would cause the exclusion
of witnesses may still be shown for the
purpose of affecting their crediDility.''
The evident object the legislature had
in view in enacting the above provisions.
was to abrOgate the general common law
rule which rendered incompetent, as wit
nesses, in an action or proceeding, the par
ties thereto or persons having a direct in
terestin its results, except, AS provided in
certain subsequent sections, among which
is section $40, which declares. that no
person shall be allowed to testify, when
the other party to the transaction is dead.
or when the opposite party 10 the action
or person for whose Immediate benefit
the action or proceeding is prosecuted or
defended is the representative of a de
ceased person when the facts to be proved
transpired before the death of such de-
ceased persons"
That is, as applicable to this case, under
said objection, no person who is a party
to the action or who has a direct interest
in the result of the action shall so testify
when the other party to the transaction is
dead.
The said witnesses in this case were not
parties to the action, nor had they any in
terest in the result of the action.
The contention Of counsel is, in effect.
that, under the above provisions of the
statute, persons having no interest in the
litigation, as parties thereto, or otherwise,
are, equally; with the parties to the action
and persons directly interested in it's re-
suit, rendered incompetent to testify
when the other party to the transaction is
dead. If such construction of the stat
ute be correct, then the legislature has
practically closed the doors of the courts
against the creditors of deceased persons,
and against all persons having any char
acter OF action arising upon any transac-
ton when the other party to the transac-
ton is dead.
We are not willing to ascribe to the leg
1slature such unjust and absurd
Neither the letter, object, nor spirit of the
statute supports the construction con-
tended for by counsel.