Herr v. Kennedy

• Decision Date: 17 February 1921
• Docket Number: Civil 1856
• Citation: 22 Ariz. 141,195 P. 530
• Parties: F. S. HERR, Appellant, v. JAMES KENNEDY, Appellee
• Court: Arizona Supreme Court

195 P. 530

22 Ariz. 141

F. S. HERR, Appellant, v. JAMES KENNEDY, Appellee

Civil No. 1856

Supreme Court of Arizona

February 17, 1921

APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge. Judgment reversed and new trial ordered.

STATEMENT OF FACTS.

Herr sued Kennedy on account for hay sold and delivered, alleging:

"That during the month of December, 1918, at the request of the defendant, plaintiff sold and delivered to the defendant (in that county) 45,155 pounds, making 22 58/100 tons of baled hay, of the reasonable value and agreed price of $677.32. That the defendant promised and agreed to pay the said price and value therefor. That he had not paid the same, nor any part thereof, though demanded. That all was due and unpaid."

Kennedy answered as follows:

"Defendant admits that plaintiff sold and delivered baled hay to the defendant, but denies that there was 45,155 pounds of baled hay so delivered to the defendant. Defendant denies that the said hay was originally worth the sum of $677.32. By way of counterclaim, alleges: That he is a merchant doing business at Williams, Coconino County, Arizona. That plaintiff, on the 10th day of December 1918, and prior thereto, was indebted to the defendant in the sum of $595.58 upon an account stated. That said stated account is just and true. That said defendant purchased some baled hay from the plaintiff with the understanding that any amount of hay delivered to the defendant by plaintiff should be applied on said stated account, and that any difference found to be existing between plaintiff and defendant should be paid to the person entitled to the same."

Herr filed a general demurrer to the counterclaim, and specifically denied the alleged accounting and indebtedness and furthermore alleged that the indebtedness upon which the stated account was founded was the debt of another, and not the debt of Herr, and then pleaded the statute of frauds against the alleged indebtedness. He furthermore pleaded that the alleged indebtedness was barred by the statute of limitations. No reply was made by Kennedy. The demurrer was overruled. The motion of Herr for a judgment on the pleadings was denied. The case was tried by a jury, and the following verdict was rendered:

"We the jury duly impaneled and sworn in the above-entitled action, upon our oaths do find the issues in favor of the defendant in the sum of $595.58, the defendant to pay the difference between the bill for the hay, $677.32, this amount to the plaintiff. The plaintiff to pay the court costs."

Upon the verdict the court rendered the following judgment:

"Wherefore by virtue of the law and by reason of the premises aforesaid it is ordered and decreed by the court that the defendant James Kennedy, have and recover of the plaintiff, F. S. Herr, the sum of $595.58, and that the defendant, James Kennedy, pay to the plaintiff, F. S. Herr, the difference between $677.32 and $595.58, and that said difference between $677.32 and $595.58 draw interest at the rate of 6 per cent per annum from the 12th day of December, 1919, and that the plaintiff, F. S. Herr, pay the costs of this suit amounting to $16.61, and also the jury fees, assessed at $72."

Mr....