Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-12-12


Washoe County. Hon.
B. F. Curler, Judge.
Wi-n 4 Julien.
4. T.. Cheney
For Respondent
By Belknap.J.
The action was upon an alleged &C
count stated.
ant The Arcade Hotel At Reno. Defend
ant was financially embarrassed and
property that he might acquire would be
subject to process by his creditors. To
avoid this it was agreed that plaintiff in
his avn name and with his own fands
should purchase and keep in his possess
ion and under his control the necessary
Supplies to be used by defendant in the
business of the hotel, to be paid for out
Of the receipts Of the business after de-
Quoting certain mentioned expsnses. In
pursuance Of this plan plaintiff from time
to time purchased supplies storing them
in 81 cellar of the hotel OF which he kept
the key aud defendant used them as the
bus mess required.
Upon January 23rd. 1888, plaintiff gave
to defendant q statement containing the
monetary Transactions between them
dow u to January LIST, 1889, showing an
indebtedness Of $l2245l. OF this amount
1856 was fer supplies furnished by San
Francisco merchants, itsmizing the
amount due each. and $3S6.25 for balance
OF rent Of hotel and supplies furnished
BY plaintiff himself II was shSwn that
plaintiff kept defendants books, that the
account Of each creditor was separately
kept therein, and that similar statements
Of accounts to the one in suit showing
from time to time different balances had
been delivered to defendant.
In reference to the account plaintiff
testified:
20 Who is the person charged?
4. made it that way to show him
it waa due me. l was owing the firms.
I siroply did that - that he could keep
track Of his business-know when he got
liquors and what he paid for them.
4. Does be know who he got them (it)
Nen!
A. Yes, sir, every time"
About i've days Afterwards the parties
met. fisinti6 testified; Il went up t.
10 Mr.. White after l had sent my attofn:
" Judge Hayden. and l agreed to lei
him have the hotel and on that won't t.
his room. He told me in bed then that il
Ivould give him day or two he would
secure me the amount, $l2245l. and pay
me the rent sam in advance thereafter
and that he would like to keep the hotel
l accepted his proposition and that is al
In regard to the statement he proposed
to settle it in not more than two days
Me did not comply with his axreemen
and the negotiations failed.''
There was other testimony but in gu
view these were the controlling facts. !
jury returned verdict in favor Of plain
tifl. A now trial was allowed and frou
the order plaintiff appeals.
Al account stated may not be in writ
ing. and II in writing its form il imy1;
terial.
Watkins '. Ford, ~ Mich. d62.
twas not necessary to have proven y
express agreement to it. 1t may be in
piled from circumstances.
Lockwood v. Thorne, IL u. Y. go.
No objection Was made to any tier
and when defendant promised to secul
it, payment the inference became irr
sistible that the minds Of the parties M
and that the defendant assented to it /,
correct.
Counsel for defendant have not attach<
importance to this promise prosumabl
for the reason that objection was TAXI
to this evideace ~ being ~ attempt
csmpromiss. There Is no such attenl
shown by the record. The promise eth
to secure or pay the debt in two days n
70 Day the rent il advance according
the terms Of the lease was nothing NC
than the naked promise Of defendant
do Whist in law he was bound to DO
ntaAter.
The record csntSins the following sta
ment: During the cross-examinati