Shade v. Sisson Mill & Lumber Co.

Citations

• 115 Cal. 357
• 47 P. 135
• 1896 Cal. LEXIS 1018

Syllabus

<p>Instructions — Appeal—Argument—Waiver op Exceptions.—Where the rulings of the trial court, in giving certain instructions asked for by the plaintiff, and refusing other instructions upon the same subject matter asked for by the defendant, are duly excepted to by the defendant, and specified as errors of law in the statement on motion for a new trial, the discussion by the defendant, in his brief upon appeal, of only the ruling refusing the instructions asked for by him, is not a waiver or abandonment of his exceptions to the giving of the plaintiff’s instructions, where it appears that the argument made in the brief necessarily involves a similar argument upon the instructions given.</p> <p>Employer and Employee—Monthly Statements op Account—Rate op Compensation—Acquiescence—Conolusivbness op Evidence—Gen- • eral Rule Inapplicable — Question op Estoppel.—The general rule that where a statement of account of past transactions is delivered to a debtor or creditor, his retaining it without objection is, as to such past transaction, merely an item of evidence, more or less conclusive, according to circumstances, does not control where the statement of account is rendered monthly by an employer to his employee, and shows the rate of compensation per month allowed to such employee; but the question in such case is one of estoppel, based upon the silence of the employee when he ought to have spoken, leading the employer to believe that the rate of compensation stated in the account was agreed to, and to act upon such belief.</p> <p>Id. — Admission — Agreement por Monthly Rate — Action by Employer upon Admission—Estoppel op Employee.—Where a person is employed by the month under an express contract for a fixed salary or wage, or under an implied contract for the reasonable value of his services, and the employer delivers to the employee, at the end of each successive month, a statement of his account, showing the time employed, and the rate of wages, or salary, allowed,