Barker v. Wheeler

• Decision Date: 19 June 1901
• Citation: 62 Neb. 150,87 N.W. 20
• Parties: BARKER ET AL. v. WHEELER.
• Court: Nebraska Supreme Court

62 Neb. 150

87 N.W. 20

BARKER ET AL.

v.WHEELER.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. In an action upon a promissory note or other contract for the unconditional payment of money, a general denial, being regarded as the Code equivalent of the common-law plea of nonassumpsit, does not put the allegation of nonpayment in issue.

2. In actions upon contract for the unconditional payment of money, it is not permissible, under a general denial, to prove payment, even though made in accordance with the terms of the contract.

3. But in an action on an official bond or other bond of indemnity, the plaintiff is not, by an answer consisting of a general denial, relieved of the necessity of proving the loss or injury out of which his right of action arose.

4. An offer to prove payment is not in every case an implied admission that the plaintiff once had an actionable demand; its purpose may be to prove that a right of action never existed.

5. Payment is not new matter, within the meaning of section 99 of the Code of Civil Procedure, when it is offered to disprove a charge of official misconduct.

Error to district court, Douglas county; Scott, Judge.

Action by Bert Glendore Wheeler, by Isaac Adams, his guardian, against George E. Barker and others. Judgment for plaintiff. Defendants bring error. Reversed.E. J. Cornish, for plaintiffs in error.

Isaac Adams and C. V. Miles, for defendant in error.

SULLIVAN, J.

Bert Glendore Wheeler sued the plaintiffs in error as sureties upon an official bond, and obtained judgment against them. The petition alleges that one James W. Eller was county judge of Douglas county during the term ending January 3, 1894; that the defendants George E. Barker and William S. Rector were the sureties upon his official bond; that Eller in his official capacity received certain money belonging to the plaintiff, and converted the same to his own use. The answer admits that Eller was county judge, and that defendants were his sureties, but denies in general terms the other averments of the petition. The only assignment of error with which we have to deal calls in question a ruling of the trial court excluding evidence tending to show that Eller, while he was yet judge of the county court, paid the plaintiff's money to her duly-constituted guardian. The correctness of this ruling depends upon whether, in actions of this kind, evidence of payment is admissible under a general denial. It is settled doctrine in this state that, in actions to recover money claimed to be due upon ordinary contracts, the general denial is the Code equivalent of the common-law plea of nonassumpsit, and hence does not put the allegation of nonpayment in issue. Magenau v. Bell, 14 Neb. 7, 14 N. W. 664;Clark v. Mullen, 16 Neb. 481, 20 N. W. 642;Lamb v. Thompson, 31 Neb. 448, 48 N. W. 58;Lewis v. Lewis, 31 Neb. 528, 48 N. W. 267;Live-Stock Co. v. May, 51 Neb. 474, 71 N. W. 67;Hudelson v. Bank, 51 Neb. 557, 71 N. W. 304. These cases recognize no distinction between payment according to the terms of the contract and payment after breach of the contract, and one of them, at least (Clark v. Mullen, 16 Neb. 481, 20 N. W. 642), is a direct adjudication to the effect that payment at the time the goods were sold and delivered, and before a cause of action arose, could not be shown unless specially pleaded. But neither this court nor any other, so far as we know, has ever held, in an action on an official bond or other bond of indemnity, that the plaintiff was, by a general denial, relieved of the necessity of proving the...