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Ralston v. Morgan

Supreme Court of Arizona

November 16, 1937

J. F. RALSTON, Appellant,
v.
JOSEPH H. MORGAN, P. W. O'SULLIVAN, LOUIS H. BUNTE and O'SULLIVAN & MORGAN, a Copartnership Composed of JOSEPH H. MORGAN, P. W. O'SULLIVAN and LOUIS H. BUNTE, Appellees

APPEAL from a judgment of the Superior Court of the County of Yavapai. J. W. Faulkner, Judge. Judgment affirmed.

Mr. James E. Babbitt and Mr. V. P. Lucas, for Appellant.

Messrs. O'Sullivan & Morgan, for Appellees.

OPINION

Page 95

[50 Ariz. 506] ROSS, J.

This is an action commenced and prosecuted by J. F. Ralston to recover $3,246.15 in money which he claims came into the hands of O'Sullivan, Morgan & Bunte as his attorneys in some litigation by plaintiff against the United Verde Mining Company and the United Verde Extension Mining Company, corporations.

The amended complaint purports to set out four causes of action. The first is for $1500 alleged to have been advanced by plaintiff to defendants "as a retainer and as an advance" against defendants' fee and to be deducted therefrom. The second is for an alleged wrongful overcharge of $1,746.15 in defendants' account with plaintiff. The third is for $3,246.15, money received by defendants from the above two mining corporations for the use and benefit of plaintiff. The fourth is in these words and figures:

"That on or about the 17th day of March, 1931, at Prescott, Yavapai County, Arizona, a written account was stated between plaintiff and the assignors of plaintiff and the defendants Morgan, O'Sullivan and Bunte herein, and upon such statement a balance of Thirty-two Hundred Forty-six and 15/100 Dollars ($3,246.15) was found due to plaintiff and the assignors of plaintiff from the said defendants; that attached hereto marked 'Exhibit A,' is a copy of said account."

The only prayer of the plaintiff is at the conclusion of the last cause of action and is for the sum of $3,246.15.

The defendants in their amended answer admitted

"that an account was stated as shown by 'Exhibit A' to said amended complaint... and (alleged) that these defendants paid, and the plaintiff and his assignors accepted as full payment, the amounts due as shown in said account and the supplemental account herein set forth as 'Exhibit A' to the amended answer."

[50 Ariz. 507] The case was tried to the court and resulted in a judgment in favor of defendants, and plaintiff has appealed.

The plaintiff, to sustain the allegations of his amended complaint, called defendant Morgan for cross-examination and commenced to question him generally concerning their dealings from the beginning. Whereupon defendants objected on the ground that plaintiff had alleged in his complaint that the parties had theretofore stated their accounts and that for that reason any evidence of their differences previous thereto was incompetent and immaterial. This objection was sustained and the ruling is assigned as error. Counsel for plaintiff, Mr. Lucas, then announced: "On behalf of the plaintiff I now abandon the fourth cause of action and move for its dismissal." This motion was granted. Thereafter, upon admissions from plaintiff's counsel that the item of $1500 in the first ...


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