Miller v. Beal

26 Ind. 234

• Court: Indiana Supreme Court
• Decided: May 15, 1866
• Status: Published

Opinion

Ray, J.

This was an action for the value of services rendered as attorney, and was commenced before a justice and appealed by the defendant below to the Circuit Court, where judgment was obtained against the appellant for an increased amount.

It is urged that the Circuit Court erred in permitting the appellee, without notice to the appellant, to amend his complaint by enlarging his claim. Pío exception was taken to this action of. the court, nor is it assigned for error in this court. But we are not inclined to regard it as error to permit such an amendment, so long as the jurisdiction of the justice was not exceeded. The question of costs is within the discretion of the court, and if any prejudice results to the other party, upon a proper showing, the court can make such order in regard to the continuance of the cause as may seem just.

The remaining question is raised upon the evidence given on the trial. It is insisted that as the appellee demanded from the appellant a certain sum for the services after they were performed, that demand furnished conclusive evidence of the value of the services, as against the appellee, even after a refusal to pay the sum demanded, and that on the trial the appellee should not have been permitted to prove a greater value, and that the finding of the jury in accordance with such evidence was error.

In our judgment, the demand upon the appellant for payment of a sum named could only be regarded as a proposition to receive that amount in discharge of the debt, and as furnishing evidence to the jury of the valué placed by the appellee upon his own services. Payment of the sum demanded would have been an acceptance of the proposition, and, no amount having been fixed by previous contract, would have been conclusive upon the parties. In the present case there was evidence from which the jury might find that the proposition was not accepted, and that the services were of greater value than the sum demanded.

U. G. Newcomb and J. Tarkington, for appellant. J. L. Ketcham and J. A. Beal, for appellee.

The judgment is affirmed, with one per cent, damages and costs.