Holgate v. Downer

• Citation: 57 P. 918,8 Wyo. 334
• Parties: HOLGATE v. DOWNER
• Decision Date: 30 June 1899
• Court: Wyoming Supreme Court

57 P. 918

8 Wyo. 334

HOLGATE v. DOWNER

Supreme Court of Wyoming

June 30, 1899

Commenced in Justice Court February 10, 1898.

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

Action on a promissory note brought in justice court. Defendant pleaded a set-off. Plaintiff recovered judgment for $ 150 and costs, and defendant appealed to the district court. In that court judgment was rendered for plaintiff for $ 120, and the latter ordered to pay all costs. Plaintiff prosecuted error.

Judgment modified as to costs.

J. F Hoop and Alvin Bennett, for plaintiff in error.

The claim set up by defendant as a counterclaim was one held by him and plaintiff's husband as partners, and can not be urged in this suit or used to reduce the amount of plaintiff's recovery. (R. S., Sections 2458, 2459; Berthold v. O'Hara, 25 S.E. 845; Thompson v. Lowe, 111 Ind. 272; 17 Ency. L., 1248; Sindelar v. Walker, 27 N.E. 59.) It was error to assess plaintiff with the costs. (R. S., Sec. 3495).

No appearance for defendant in error.

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

Plaintiff in error, R. M. Holgate, brought suit in justice court upon promissory note for $ 150, executed by George Downer, defendant in error, dated January 1, 1897, and payable to the plaintiff in error ninety days after date.

To plaintiff's petition defendant filed an answer as follows:

"Comes now the defendant, and for his answer to the petition of the plaintiff herein admits the execution and delivery of the note set out in plaintiff's petition, but denies each and every other allegation in plaintiff's petition contained.

"And as a further and second defense to the petition of plaintiff, and by way of cross-petition, counterclaim, and set-off thereto, and satisfaction and payment thereof, the defendant says: That heretofore, to wit: shortly prior to the 23d day of July, A. D. 1896, the defendant entered into an agreement with Henry Holgate, the husband of plaintiff, whereby defendant agreed to and did furnish to said Henry Holgate the sum of $ 2,500 for the purpose of purchasing and dealing in livestock, which money was deposited to the credit of Downer and Holgate in the Bank of Commerce, Sheridan, Wyoming, and at the time of furnishing said funds it was agreed and understood that the same was only to be used for the purpose of purchasing and dealing in cattle. That thereafter, on the 23d day of July, A. D. 1896, said plaintiff became, and now is, indebted to the defendant in the sum of $ 150, money of said defendant paid to plaintiff by said Henry Holgate, her husband, from and out of the said fund of $ 2,500, so furnished by this defendant to the said Henry Holgate, which money was received by the plaintiff for the use and benefit of this defendant, at said time not being indebted to plaintiff in any sum whatever, and the money so received by plaintiff being the money of this defendant. Said sum of $ 150 has not been paid, nor any part thereof, and there is now due from plaintiff to defendant said sum of $ 150, together with interest thereon from the 23d day of July, A. D. 1896, at 8 per cent per annum. The defendant further says that the execution and delivery of the note sued upon in plaintiff's petition arose and grew out of and pertains to the transaction hereinbefore described wherein and whereby said plaintiff became indebted to the defendant as above stated. Wherefore the defendant prays that plaintiff take nothing, and that this defendant have and recover of and from said plaintiff said sum of $ 150, together with interest thereon at eight per cent per annum, from the 23d day of July, 1896."

To the second defense of this answer, being the counterclaim and set-off, the plaintiff interposed a demurrer on the following grounds: 1. That the court has no jurisdiction of the subject thereof. 2. That the defendant has no legal capacity to recover upon the same. 3. That the counterclaim or set-off is not of the character specified in Section 2459. 4. That it does not state facts sufficient to entitle the defendant to the relief demanded.

The justice overruled the demurrer and plaintiff excepted. Without further pleading on the part of plaintiff, she having elected to stand on her demurrer, the cause was tried, and upon the evidence offered by defendant, judgment was rendered in favor of the plaintiff for $ 150 and costs.

The defendant took the case, by appeal, to the district court of Sheridan County. In that court plaintiff submitted a motion to strike out the new matter contained in defendant's answer and cross-petition on the ground that the same does not constitute a defense to plaintiff's cause of action. The motion was overruled and plaintiff excepted, and a reply was filed denying generally the allegations of new matter in the answer. A trial de novo was had without a jury, and the court found $ 120 with interest from the maturity of the note, to be due plaintiff, and rendered judgment accordingly, but ordered that the plaintiff pay all the costs of both courts. It is evident from the finding of the court that thirty dollars were allowed the defendant upon the counter claim and set-off pleaded in his answer.

The plaintiff brings the case here, assigning as error the overruling of plaintiff's motion to strike the new matter from the answer; the admission in evidence of the transaction set up in the answer, the allowance of a set-off to the defendant, and the order requiring plaintiff to pay all the costs, and the overruling of plaintiff's motion for new trial, as well as her motion for a retaxation of costs. The motion to retax costs did not proceed upon any objection to the amount, so far as the motion discloses, but was in effect that they be taxed against the defendant.

The motion to strike out was properly overruled. It is not the office of such a motion to assail an entire cause of action or defense on account of the insufficiency of the facts therein contained. An objection of that character should be raised by demurrer.

On behalf of the plaintiff in error it is contended that the facts do not entitle the defendant in error to any relief in this action under the counterclaim and set-off pleaded by him. In the consideration of this question it will be necessary to review the testimony at some length. The facts concerning the ownership of the money which it is alleged in the answer that the plaintiff had received to and for the use of the defendant are to be gathered entirely from the testimony of the latter, that being the only evidence relating to that matter.

It seems that since 1892, the defendant and Henry Holgate, the latter being the husband of the plaintiff, had been partners, although the nature of their partnership business prior to the summer of 1896 is not disclosed. In July, 1896, some sort of an arrangement was entered into between them for the purchase and sale of cattle. The testimony does not reveal any connection between this deal and any other business in which they may have been jointly interested, and it would appear that the transaction of 1896 was an independent affair. Indeed, from anything shown by the record the partnership between said parties may at all times have consisted of, or been confined to, separate transactions.

The evidence is not as full and satisfactory as we should have desired with regard to some of the details of the arrangement between said parties in July, 1896.

When asked what business relations, if any, he had with Henry Holgate in the summer of 1896, the defendant replied that he believed he was in partnership with him at that time. Explaining the matter, he stated that he furnished Holgate with $ 2,500 to buy some cattle with--that he had put the money in the First National Bank at Sheridan to fill a cattle contract they had; and that the understanding was that the money was to be expended for cattle. That, instead of buying cattle, Holgate drew a check for $ 1,500 in his own favor, another check for $ 25, payable to one Senff, and one for $ 150, payable to his wife (the plaintiff in error), and skipped the country.

The counterclaim or set-off is based upon the receipt of that $ 150 by the plaintiff.

It seems the cattle contract was with the firm designated as Kirby & Co.; but the contract is not in the record, nor does it appear to have been introduced in evidence; and its precise nature is in no way disclosed.

Being pressed for further particulars respecting the $ 2,500 furnished by him as stated, the defendant testified that $ 1,500 of the amount was advanced by Kirby & Co. upon the cattle; that it was made by check to Downer & Holgate handed to defendant and by him deposited in the bank to the credit of Downer & Holgate, and the defendant also deposited to the same credit one thousand dollars of his own money. He further stated that Holgate was to advance some more money but failed to do so. The advance by Kirby & Co. is also referred to in the testimony as a loan, and defendant testified that he supposed that he and Holgate borrowed it together, and entered into a bond--the inference being that the bond was given to Kirby & Co. as security for the advance. It is also stated that the bond was also signed by a party named Senff who was implicated in the deal; and that defendant signed it as surety, and subsequently paid back the money, partly in cash and partly in cattle. We quote the following from defendant's testimony on cross-examination: "Q. Was not this money that was deposited to your credit, was not that furnished by Kirby & Co.? A. $ 1,500 was furnished by Kirby & Co., and I paid it back. Q. When? A. In about, I think, inside of sixty days after the bond was given. I paid it partly in cattle...