Catron v. Shepherd
| Decision Date | 09 April 1879 |
| Citation | 1 N.W. 204,8 Neb. 308 |
| Parties | JAMES H. CATRON, PLAINTIFF IN ERROR, v. JOHN E. SHEPHERD, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR from the district court for Otoe county. The facts are fully set forth in the opinion.
Judgment affirmed with costs.
J. L Mitchell, for plaintiff in error.
The word "defense" as used in the code, secs. 99, 100 must include partial as well as complete defenses, and the defendant should be prohibited from giving in evidence any new matter, either as a complete or partial defense, unless such matter had been set up in the answer. The court can only adjudicate upon the case made by the pleadings. School District v. Shoemaker, 5 Neb. 36. Clark v. O. & S.W R. R., 5 Neb. 314. A. & N. R. R. v. Washburn, 5 Neb. 117. Peet v. O'Brien, 5 Neb. 360. Danforth v. Smith, 23 Vermont, 247. English v. Foxall, 2 Peters, 595. Chalmers v. Chalmers, 6 H. & J., 29.
The issue upon which this case was tried was plainly and clearly defined. The answer was by way of confession and avoidance. The execution and assignment of the contract sued on was admitted as well as the amount due thereon. The affirmative allegation set up for the purpose of avoiding the liability was that plaintiff acquired and paid for said contract with defendant's money. Under well-settled principles of law if the defendant failed to sustain this affirmative defense the plaintiff would be entitled to recover the amount claimed in his petition. No evidence offered by defendant could properly be admitted or heard by the court which did not tend to establish his said defense. No other defense could be tried or passed upon by the court. See authorities above cited. The finding of the court which is to be treated in every respect as a verdict and special finding of a jury, negatived the only defense pleaded.
Suppose this case having been tried by a jury, a general verdict had been returned that plaintiff was entitled to recover only $ 4,318, with a special finding that plaintiff did not purchase said contract with the defendant's but with his own money, and the motion for judgment had been filed in this case, what would have been the duty of the court, the general verdict and the special finding being inconsistent? Sec. 294, chap.57, General Statutes of Nebraska. The matters set up in avoidance had been negatived--removed the confession and only that remained, and plaintiff was entitled to judgment as if no new matter had been pleaded.
A party will not be permitted to amend by setting up a new cause of action or a new and different defense--especially after verdict or trial. Thompson v. Phelan, 2 Foster (N. H.), 339. French v. Gerrish, 2 Foster (N. H.), 97. Lawrence v. Langley, 14 N.H. 70. Newell v. Hussey, 18 Maine, 249. Walter v. Bennett, 16 N.Y. 250. Belknap v. Sealey, 14 N.Y. 147. Woodruff v. Dickie, 31 How. Pr., 164. Butler v. Livermore, 52 Barb. 570. Apply the law of these cause to the one at the bar. The claim of defense set up by way of amendment after trial, by order of the court, was not only a new and different one from the one upon which the case was tried, but it was inconsistent with it and contradictory of it. The one upon which the case was tried sounded in tort the conversion of defendant's money; the new one is based on a contract or agreement set out in said amendment. Are these not different defenses, such as our statute requires should be separately stated and numbered? The one is not only in tort the other on contract, but one is a complete, the other only a partial defense. The new matter in the original answer was stated in one count, which contained only one defense. How was it possible for plaintiff to expect from the reading of that answer that he would be called upon to try any such defense as is set up in the amendment? He had a right to presume--and the law will sustain and protect him in presuming--that he would be called upon to meet the defense upon which defendant had chosen to stand in his answer, and no other. He was not prepared--and was not required to be prepared--to try the defense set up in the amendment. And it is submitted to this court, whether he shall be concluded by the amendment so ordered and made, or the finding of the court upon it, without even the semblance of a trial thereon.
S. H. Calhoun, for defendant in error.
Catron, by purchasing this claim against Shepherd, after or about the time of closing up of the partnership affairs, and in view of a settlement thereof, and knowing that on such a settlement he would have to pay to Shepherd a large sum of money, and further knowing of the advantageous offer made by Pierce to Shepherd to compromise the claim on which this suit is based-- through, and by means of the effort made by Shepherd to have him (Catron) furnish the money necessary to enable Shepherd to accept and act upon said offer--became thereby the trustee of a constructive trust in favor of Shepherd. Perry on Trusts, secs. 168, 169, 170, 209 and 210, and the authorities therein cited. Under all the circumstances, the purchase by Catron was a diversion of the partnership funds to the payment of Catron's own debt (to Shepherd) and was a fraud upon Shepherd, and Catron holds said purchase with all the advantages gained thereby in trust for Shepherd. Viles v. Bangs, 36 Wis. 131. Rogers v. Batchelor, 12 Peters, 221. Dob v. Halsey, 16 Johns., 34. Gram v. Caldwell, 5 Cow., 489. Sauntry v. Dunlap, 12 Wis. 364. Homer v. Woods, 11 Cush., 62. Greeley v. Wyeth, 10 N.H. 15. Caldwell v. Scott, 54 N.H. 414. Perry on Trusts, sec. 127, and cases therein cited. Colyer on Partnership, secs. 181, 182. 1 Story's Equity, secs. 468, 623, 321, 322, 323. Stoughton v. Lynch, 1 John's Ch., 470. Kelly v. Greenleaf, 3 Story, C. C., 93-101. Farnam v. Brooks, 9 Pick., 212. Parson on Partnership (2d ed.), 242.
On the tenth day of October, 1872, the defendant purchased of A. N. Pierce, of Texas, eleven hundred and six head of cattle for the sum of $ 20,362, the money to be paid in installments as provided in a written contract executed by the parties at that time. The plaintiff was appointed agent by Pierce to collect and receipt for the payments. Various payments were made by the defendant upon the contract up to the twenty-sixth day of June, 1874, when there remained due and unpaid about the sum of $ 3,000.00 This sum the defendant appears to have been unable to pay, and Pierce offered to take one thousand dollars for the claim if Shepherd could pay within a certain time.
O. P. Mason, with whom the claim was left, testifies as follows: This testimony is not denied.
In August, 1874, the plaintiff and defendant entered into the following contract:
"(Signed), JOHN E. SHEPHERD."
This contract appears to have been made to take the place of another that had existed between the parties for some time. In January, March, and April, 1875, the plaintiff sold the stock and retained the entire proceeds, amounting to a very large sum; the profits due the defendant exceeded the sum of $ 1,900. On or about the sixth day of April, 1875, Catron being about to leave for Iowa to ship and sell the last lot of stock, purchased of Mason and Lehman, the attorneys for Pierce, the account due from Shepherd to Pierce for the sum of $ 500, and he claims to have paid one Hicklin $ 500 in addition, though for what particular purpose is not clear. This account Catron appears to have sought to turn in at its face in his settlement with Shepherd. The defendant offered to take the account in settlement at the sum the plaintiff had paid for it. This the plaintiff refused and instituted this action on the account to recover the sum of $ 3,737.55 and interest and costs. The cause was submitted to the court without the intervention of a jury, and the court "doth find that the plaintiff and defendant were partners engaged in the business of feeding and selling cattle and hogs; that the plaintiff made all sales and received the proceeds thereof, and while he had a considerable amount of partnership funds in his hands, and while the partnership affairs were unsettled, he purchased with his own money the claim sued on in this action; that while they were such...
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