Johnson v. Berdo

• Citation: 106 N.W. 609,131 Iowa 524
• Parties: JOHNSON v. BERDO.
• Decision Date: 13 March 1906
• Court: Iowa Supreme Court

131 Iowa 524

106 N.W. 609

JOHNSON

v.BERDO.

Supreme Court of Iowa.

March 13, 1906.

Appeal from District Court, Washington County; B. W. Preston, Judge.

Suit for an accounting. There was a finding and judgment in favor of the plaintiff. The defendant appeals. Reversed.H. M. Eicher, for appellant.

J. J. Kellogg and Henderson & Thorne, for appellee.

LADD, J.

The plaintiff was a tenant on defendant's farm for three years, commencing March 1, 1896. The rent was payable in cash, and payment had been made at different times during the term; but no settlement was had prior to March 1, 1899. On that day plaintiff was about to remove his property from the premises, and was notified by defendant's agent that he must settle before doing so. Thereupon the parties met at the office of Squire Rogers, and upon his computation there was found to be due defendant $554.84, which plaintiff paid, and received from Rogers a receipt in full. Thereafter he submitted the papers and Rogers' figures to another, who, it is said, discovered errors in the computation, in that interest had been computed on certain rent notes from their date, instead from maturity; also that some items had been omitted. They consulted defendant with reference to a correction, which he refused, as he explained, owing to all papers had at the settlement not being produced, but, as told by plaintiff, for that he had the money and would keep it. Thereupon this action was begun. Owing to circumstances unnecessary to relate, it was not brought on for hearing before a referee duly appointed for that purpose until October 15, 1903. He found that there had been a settlement between the parties, but that through mutual mistake and oversight interest had been computed on certain rent notes from date, instead of from maturity, and that two items, one of $90 and another of $37.50, had not been credited the plaintiff, and recommended that judgment be entered for $174.80, with interest at 6 per cent. per annum from March 1, 1899. The evidence was in sharp conflict, but the district court confirmed the report, and rendered judgment accordingly.

1. The first step in the consideration of a case, either at nisi prius or upon appeal, when the hearing is de novo, is to ascertain the precise issues to be decided. In that before us the petition asked for an accounting. The answer, among other things, alleged a general settlement. This was an affirmative defense, to establish which the burden of proof was on the defendant. Grove v. Bush, 86 Iowa, 94, 53 N. W. 88. The reply was a general denial. This merely put in issue the fact of there having been a settlement such as alleged. If there was a general settlement between the parties, it is presumed to have included all matters of difference and in controversy between them. Tank v. Rohweder, 98 Iowa, 154, 67 N. W. 106;Watson Coal, etc., Co. v. James, 72 Iowa, 184, 33 N. W. 622. But, under this general issue, evidence assailing the validity or accuracy of the settlement was not admissible. To impeach a settlement because of errors having occurred through mutual mistake or on the ground of fraud, these matters must be distinctly alleged. 8 Cyc. 523. Or, as said in Hunter v. Aldrich, 52 Iowa, 442, 3 N. W. 574, particular errors must be stated and proved. Thompson v. Maxwell, 74 Iowa, 416, 38 N. W. 125;Stomne v. Hanford Produce Co., 108 Iowa, 137, 78 N. W. 841. And the burden of proof is on the party thus seeking to avoid the effect of a settlement. Tank v. Rohweder, 98 Iowa, 154, 67 N. W. 106. If, then, there were no averments of mistake or fraud in the settlement contained in the pleadings, these were not proper matters for consideration by the referee or district court.

2. In what is designated a supplemental abstract, an amendment to the petition is set out, averring certain errors and omissions in the settlement resulted from mutual mistake, and that it was filed in December, 1904, to conform the pleadings to the proof. The motion to strike this additional abstract is without merit. The delay in filing it cannot have worked any prejudice. But appellant denies its contents, and says that no such pleading was filed or is a part...