Forbes v. Petty

CourtSupreme Court of Nebraska
Writing for the CourtPOST
Citation37 Neb. 899,56 N.W. 730
PartiesFORBES v. PETTY.
Decision Date17 October 1893

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.

[56 N.W. 730]

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,...

To continue reading

Request your trial
5 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...consented to. It must be shown that there was a full and complete settlement of all matters and things in controversy. (Forbes v. Petty, 37 Neb. 899.) The allegation of the answer on the subject of settlement is a mere legal conclusion, and does not constitute a defense. Testimony in suppor......
  • Witherington v. Huntsman
    • United States
    • Supreme Court of Arkansas
    • January 15, 1898
    ...and the transfer of accounts did not embrace the old claim. The settlement was valid, and will not be set aside. 2 Bates, Part. § 958; 56 N.W. 730 and 891; 49 N.W. 736; Story, Part. vol. 1, p. 229; Pom. Eq. Jur. § 850; 12 P. 81; 16 S.W. 543; 2 Bates, Part. § § 962, 963. The accord and satis......
  • Roberts v. Samson
    • United States
    • Supreme Court of Nebraska
    • March 3, 1897
    ...v. Garrison, 83 N. Y. 14;Rathburn v. Railroad Co., 16 Neb. 441, 20 N. W. 390;Tessier v. Reed, 17 Neb. 105, 22 N. W. 225;Forbes v. Petty, 37 Neb. 899, 56 N. W. 730. “Contrary to the common-law rule,” as said by Dixon, C. J., in Morse v. Gilman, 16 Wis. 504, “every reasonable presumption and ......
  • Roberts v. Samson, 7118
    • United States
    • Supreme Court of Nebraska
    • March 3, 1897
    ...83 N.Y. 14; Rathburn v. Burlington & M. R. R. Co. 16 Neb. 441, 20 N.W. 390; Tessier v. Reed, 17 Neb. 105, 22 N.W. 225; Forbes v. Petty, 37 Neb. 899, 56 N.W. 730.) "Contrary to the common law rule," as said by Dixon, C. J. in Morse v. Gilman, 16 Wis. 504*, "Every reasonable intendment and pr......
  • Request a trial to view additional results
5 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...consented to. It must be shown that there was a full and complete settlement of all matters and things in controversy. (Forbes v. Petty, 37 Neb. 899.) The allegation of the answer on the subject of settlement is a mere legal conclusion, and does not constitute a defense. Testimony in suppor......
  • Witherington v. Huntsman
    • United States
    • Supreme Court of Arkansas
    • January 15, 1898
    ...and the transfer of accounts did not embrace the old claim. The settlement was valid, and will not be set aside. 2 Bates, Part. § 958; 56 N.W. 730 and 891; 49 N.W. 736; Story, Part. vol. 1, p. 229; Pom. Eq. Jur. § 850; 12 P. 81; 16 S.W. 543; 2 Bates, Part. § § 962, 963. The accord and satis......
  • Roberts v. Samson
    • United States
    • Supreme Court of Nebraska
    • March 3, 1897
    ...v. Garrison, 83 N. Y. 14;Rathburn v. Railroad Co., 16 Neb. 441, 20 N. W. 390;Tessier v. Reed, 17 Neb. 105, 22 N. W. 225;Forbes v. Petty, 37 Neb. 899, 56 N. W. 730. “Contrary to the common-law rule,” as said by Dixon, C. J., in Morse v. Gilman, 16 Wis. 504, “every reasonable presumption and ......
  • Roberts v. Samson, 7118
    • United States
    • Supreme Court of Nebraska
    • March 3, 1897
    ...83 N.Y. 14; Rathburn v. Burlington & M. R. R. Co. 16 Neb. 441, 20 N.W. 390; Tessier v. Reed, 17 Neb. 105, 22 N.W. 225; Forbes v. Petty, 37 Neb. 899, 56 N.W. 730.) "Contrary to the common law rule," as said by Dixon, C. J. in Morse v. Gilman, 16 Wis. 504*, "Every reasonable intendment and pr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT