Normandin v. Gratton

8 P. 653, 12 Or. 505, 1885 Ore. LEXIS 74

• Court: Oregon Supreme Court
• Decided: November 19, 1885
• Status: Published

Opinion

Lord, J.

The question asked and answered by the witness was evidence tending to rebut the presumption of the settlement alleged, including all demands between the parties, and was admissible. It is conceded that a settlement between the parties is prima fade to be taken as a settlement of all demands, but is not conclusive, and is no bar to a recovery for. matters not included in the settlement, though existing at the time. (Nichols v. Scott, 12 Vt. 47; Ryan v. Rand, 26 N. H. 15.) The object of the question was to show that the matter referred to was not included in the--account stated, and thus rebut the presumption that it included all previous transactions. (Whart. Ev. § 1331, notes.) As such the question was admissible, and the objection was properly overruled. It is true the answer might have been more explicit and specified the transactions with more particularity, but in failing to develop this, the plaintiff saw the risk of this evidence proving unsatisfactory for the purpose offered. And yet, if it was unsatisfactory to the adverse party, he had the opportunity of cross-examination, and could have compelled a further explanation. As it was, the parties were content to submit the matter to the tribunal whose province it was to adjudge the fact, and as this resulted adversely to the appellant, it is not perceived how we can remedy it. To impeach an account stated, either fraud or mistake must be shown to exist; but that is not the question involved in this case. In respect to the note, it is sufficient to say that the same principle already discussed is applicate to it.

Upon this record we cannot do otherwise than affirm the judgment.