Crilly v. Ruyle
| Decision Date | 29 June 1910 |
| Docket Number | 16,104 |
| Citation | 127 N.W. 251,87 Neb. 367 |
| Parties | HUGH CRILLY, APPELLANT, v. HENRY RUYLE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Franklin county: HARRY S. DUNGAN JUDGE. Reversed.
REVERSED.
George Marshall and W. C. Dorsey, for appellant.
R. W Sabin and A. H. Byrum, contra.
This is an action to recover an alleged balance due upon a sale and delivery of cattle. The defendant prevailed, and the plaintiff appeals.
The defendant is a farmer and live stock dealer. He owns land in Franklin county and in Gage county, but resides near Rockford, in Gage county. The plaintiff in 1907 resided in the village of Campbell, Franklin county, was engaged in the live stock business, and his feed yards and pasture joined the stock pens of the railway in said village. The latter part of September of said year the defendant and the plaintiff agreed orally that the former should purchase from the latter 36 stock cattle for three different prices according to the sex and grade. The cattle were to be weighed at Campbell, and 2 per cent. of the gross weight deducted as shrinkage. To this point the parties are in accord, but the evidence concerning the remaining details of the contract and their conduct is in conflict. The plaintiff testifies the defendant agreed that his employee, a Mr. James, should assist in weighing and would receive the stock, whereas the defendant testifies that James was to merely assist in weighing and loading the cattle, and that he had no authority to represent and did not represent his master. The defendant testifies that the parties agreed the animals were not to be fed alfalfa, and he produced evidence tending to prove that during the week intermediate the making of the contract and the shipment of the stock they were so fed. The plaintiff testifies there was no such agreement, that the defendant knew the cattle had access to an alfalfa pasture, and that no alfalfa hay was fed to them. The proof indicates that cattle fed upon green or partially cured alfalfa will lose considerable weight during transportation. The cattle were weighed in the presence of Mr. James and shipped to Rockford via Beatrice. At the last named point they were unloaded, rested, fed, watered and then transported to Rockford, eight miles distant. The defendant testifies he weighed the cattle over the railway scales at Rockford, and by comparing the weight thus ascertained with the statement of weights sent him by the plaintiff from Campbell learned that the stock had shrunk, in addition to the 2 per cent. deducted according to the agreement, 3,810 pounds. The defendant contends that, had the cattle been fed according to agreement and accurately weighed at Campbell, there would have been no such shrinkage, and argues that by an accord and satisfaction and the payment of $ 750 he has satisfied the plaintiff's demand.
1. The petition recites the contract from the plaintiff's standpoint, credits the defendant with $ 750, and demands judgment for the balance due according to the Campbell weights. The defendant answers by way of a general denial, admits he purchased cattle from the plaintiff, and charges "that he paid plaintiff the full value of said cattle on the terms and conditions upon which he purchased said cattle from said plaintiff, and that he has fully settled with the said plaintiff for same before the commencement of this action, and that he is not owing the said plaintiff, or indebted to him in any sum whatsoever." To this answer no reply was filed. We are met at the threshold of this case with the defendant's assertion that the plea of payment stands undisputed, and the verdict therefore should be sustained notwithstanding the evidence. The defendant tried the case as though his plea of payment had been traversed. While section 134 of the code provides that every material allegation of new matter in an answer not controverted by a reply shall for the purpose of the action be taken as true, yet a litigant will not be permitted to try his case in the district court as though a reply traversing the allegation in his answer were on file and insist in this court that no reply was filed. Schuster, Hingston & Co. v. Carson, 28 Neb. 612, 44 N.W. 734; Pokrok Zapadu Publishing Co. v. Ziskovsky, 42 Neb. 64, 60 N.W. 358; Missouri P. R. Co. v. Palmer, 55 Neb. 559, 76 N.W. 169; Minzer v. Willman Mercantile Co., 59 Neb. 410, 81 N.W. 307; In re Estate of Cheney, 78 Neb. 274, 110 N.W. 731.
2. The plaintiff argues that the pleader states conclusions, and not facts, with respect to payment, and the answer does not present that defense. The pleading is vulnerable to a motion to make more specific, but, if not attacked in that manner before trial, is sufficient to present the defense of payment. Keys v. Fink, 81 Neb. 571, 116 N.W. 162; Swett v. Southworth, 125 Mass. 417; Goss v. Calkins, 164 Mass. 546, 42 N.E. 96; 30 Cyc. 1254.
3. Over the plaintiff's objections, evidence was received to prove an accord and satisfaction, and the court submitted that defense to the jury. An accord and satisfaction is predicated upon an agreement between the parties based upon a consideration and fully executed on the part of the defendant, whereby the plaintiff's cause of action is satisfied or discharged. The answer presents no such a defense. Van Housen v. Broehl, 58 Neb. 348 59 Neb. 48; Coit & Woolsey v. Houston, 3 Johns. Cases (N.Y.) 243; City of Rawlins v. Jungquist, 16 Wyo. 403, 96 P. 144; 1 Cyc. 341; Maxwell, Pleading and Practice (4th ed.) 140. We cannot say the evidence upon a second trial will necessarily sustain a plea of an accord and satisfaction. According to the agreement the cattle were to be weighed in Campbell, and, in the absence of fraud or mistake, the defendant should be concluded by those weights. Colorado Trading & Transfer Co. v. Oliver, 20 Colo.App. 257, 78 P. 308. There is no allegation in the answer that fraud was practised, or mistake occurred, in weighing the cattle at Campbell. The defendant testifies he wrote a letter to the plaintiff November 7, 1907, before the $ 750 was paid, informing him the cattle arrived in good condition, but the shrinkage was so great the witness would not pay according to the Campbell weights, but had sent the $ 750 in full satisfaction of the plaintiff's claim. The defendant testifies the letter was placed in the United States mail, but does not state he attached any postage stamps to the envelope. The plaintiff denies having received any such letter. Upon proof of all the facts necessary to create a presumption that the letter was received by the plaintiff, the jury should say whether they believed the plaintiff's denial, rather than the testimony sustaining the presumption. If the defendant did not write the letter, or if it were written but was not received by the plaintiff, the proof is not conclusive he was informed the money had been sent upon condition that it should be accepted in satisfaction of a disputed claim. The defendant argues that the German National Bank at Beatrice was the plaintiff's agent for the collection of the draft, and, since the money was paid the bank upon condition that the plaintiff should accept that money in satisfaction of his demand, that the defense of an accord and satisfaction is...
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