Hapgood Plow Co. v. Martin
| Decision Date | 28 May 1884 |
| Parties | HAPGOOD PLOW COMPANY, PLAINTIFF IN ERROR, v. ELISHA L. MARTIN AND GEORGE D. NOBLE, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Fillmore county. Tried below before MORRIS, J.
THE case was one where Martin & Noble, defendants, made an agreement with plaintiff for the purchase of plows, which was carried out and an alleged settlement made by the agent of plaintiff and Noble, one of the defendants. Suit was brought to recover the amount due according to said settlement. Defendants plead payment, "that said defendants did before the commencement of this suit, to-wit, on the day of A.D. 188-, pay to said plaintiff the sum of $ , in said petition demanded, together with all interest at that time due thereon," etc. Under this plea evidence of payment by delivery of notes and accounts was given. Verdict for defendants.
AFFIRMED.
John P Maule, for plaintiff in error.
Rushton & Mathewson, for defendants in error.
The main question presented by the record in this case is, whether the delivery by the defendants in error to the plaintiff in error of certain notes and accounts was made by them and received by the plaintiff in error as payment and in full satisfaction of its demand against them, or was made by them and received by it as collateral security for their indebtedness only.
This question seems to me to have been fairly submitted by the instructions of the court to the jury, and indeed no exceptions are taken to the instructions. The point is made that evidence of payment was not admissible under the pleadings; but upon this point I think the pleadings sufficient to let in evidence of payment. The authorities cited by counsel for defendants in error are ample upon that point. As to whether there was sufficient testimony of the loss of the letter from plaintiff in error to defendants in error to admit of the introduction of evidence of its contents, in all such cases a wide latitude of discretion must necessarily be left to the trial court. It is, ordinarily, quite impossible to spread upon a bill of exceptions a sufficiently lucid statement of all the circumstances to enable a reviewing court to see with certainty that a trial court has abused this discretion. In this case it seems that the letter in question had been left with the county judge at the first trial. Those who had an interest in the...
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