Forbes v. Petty

• Decision Date: 17 October 1893
• Citation: 37 Neb. 899,56 N.W. 730
• Parties: FORBES v. PETTY.
• Court: Nebraska Supreme Court

37 Neb. 899

56 N.W. 730

FORBES

v.PETTY.

Supreme Court of Nebraska.

Oct. 17, 1893.

Syllabus by the Court.

1. Where a pleading is sufficient in substance, but wanting in form or completeness, the remedy is by motion, and not by demurrer.

2. In an action for the value of property alleged to have been converted by the defendant, the answer was that “* * * the 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 the defendant at the time, and more especially the matter referred to in the petition.” Held to present the issue of settlement as a distinct and separate defense, and that the defendant is not confined to proof of the arbitration alleged.

3. Evidence examined, and held sufficient to sustain the judgment of the district court.

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

Action for conversion by George W. Forbes against Edward Petty. Defendant had judgment, and plaintiff brings error. Affirmed.H. D. Estabrook and Chas. E. Clapp, for plaintiff in error.

Gregory, Day & Day and W. W. Morsman, for defendant in error.

POST, J.

This was an action by the plaintiff in error in the district court of Douglas county to recover the value of 22 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 25 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,...