Forbes v. Petty
| Decision Date | 17 October 1893 |
| Docket Number | 4891 |
| Citation | 56 N.W. 730,37 Neb. 899 |
| Parties | GEORGE W. FORBES v. EDWARD PETTY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before CLARKSON, J.
AFFIRMED.
H. D Estabrook and Charles E. Clapp, for plaintiff in error.
Gregory Day & Day and W. W. Morsman, contra.
This was an action by the plaintiff in error in the district court of Douglas county to recover the value of twenty-two calves and their increase, alleged to have been converted by the defendant in error in the spring of 1880. The answer contains several defenses, but one of which will be noticed, viz.: "That in the year 1881 this defendant had a full and complete settlement, and a full and complete arbitration and settlement, of all matters and things in dispute, which settlement and arbitration included all matters and things in controversy between plaintiff and defendant at the time, and, more especially, the matter referred to in the plaintiff's petition."
The controversy concerning the calves grew out of the following facts: In the year 1878, Petty, the defendant in error, who was in the employ of Forbes, the plaintiff in error, caring for certain cattle on the range in the then territory of Dakota, made a contract to purchase from the latter twenty-five cows. Although said agreement was never consummated by payment or change of possession of the cows, Petty, in the spring of 1880, claiming to own them, branded their offspring, the calves in controversy, as his own. In the year 1881, there being other contentions between the parties, it was mutually agreed to submit certain matters, to arbitration. The allegation of the answer that all matters of difference were thus submitted is unsupported by the proof, since it is clear that the question now at issue was not thus submitted. At the trial below the defendant was permitted by the court to prove that at the time of the arbitration the plaintiff's claim on account of the calves was settled by an agreement of the parties, in substance, that the former should relinquish all claim to the cows and calves, and that the latter should take them as they then were on the range, gather them himself, and brand them with his own brand. Objection was made to the introduction of this proof, which was overruled, and the ruling of the court thereon presents the first question for our consideration.
It is claimed by the plaintiff that the only question at issue is that of the arbitration. On the other hand it is contended by the defendant that he is not confined to the arbitration alleged, but that his answer presents as well the issue of settlement, as a distinct and separate defense in no way depending upon the question of arbitration. We agree with counsel for the defendant that the proof of settlement was...
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