Lough v. Thornton

• Decision Date: 01 January 1872
• Citation: 17 Minn. 230
• Parties: JAMES W. LOUGH v. JOSEPH THORNTON.
• Court: Minnesota Supreme Court

17 Minn. 230

JAMES W. LOUGHv.

JOSEPH THORNTON.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Scott county.

Henry Hinds, for appellant.

J. L. Macdonald, for respondent.

McMILLAN, J.

The complaint in this action alleges that the plaintiff, on the seventeenth of November, 1866, employed the defendant to sell, on commission of 18 per cent., certain boots and shoes, the property of the plaintiff, mentioned and specified in a bill of items annexed to and made part of the complaint, of the value of $262.95, and delivered the same to the plaintiff; that defendant made sales thereof to the amount of $169.95, and returned unsold goods to the value of $93; that defendant had accounted for and paid to the plaintiff only $30 of the proceeds of sales, and demands judgment for the residue, less the defendant's commission, to the amount of $100, waiving any and all claim or right to any sum exceeding that amount.

The answer of the defendant denies each and every allegation of the complaint except such as are expressly admitted.

The defendant, further answering, avers that the goods in the complaint mentioned were delivered to the defendant by Solomon Whipps, to be sold on commission as the property of J. W. Lough & Co., composed of said J. W. Lough, Solomon Whipps, and C. Taylor, to be paid for when sold, less the defendant's commission of 18 per cent., to said Solomon Whipps or said J. W. Lough & Co.; that defendant sold a part of the goods and realized therefor $146.20, and delivered the balance of the goods to the plaintiff; and further avers that before the commencement of this action he paid to said J. W. Lough & Co., by delivering to said Solomon Whipps the sum of $58.10, and paid to the said J. W. Lough on his demand, by delivering the same to J. L. Macdonald at his request, the further sum of $30.00, and admits that he is indebted to the said J. W. Lough & Co., for moneys received on the sale of said goods, the sum of $31.78.

The plaintiff in his reply denies each and every allegation of new matter and counter-claim in said answer contained. The case was tried by jury, and the jury rendered a general verdict for the plaintiff for $31.78. After the settlement of a case, the plaintiff moved (1) for a judgment notwithstanding the verdict for the amount claimed by the plaintiff in his complaint; and, if not granted, (2) for a new trial. The court granted the motion for judgment notwithstanding the verdict, or for a new trial, at the election of the plaintiff, and requiring such election by the plaintiff to be made within 10 days; whereupon the plaintiff elected to take judgment notwithstanding the verdict, and judgment was entered accordingly, from which judgment this appeal was taken by the defendant.

A judgment non obstante veredicto is rendered where the defendant by his pleading confesses without sufficiently avoiding the action. Lough v. Bragg, 18 Minn. 121, (Gil. —;) 1 Chit. Pl. 656; Bellows v. Shannon, 2 Hill, 86. A judgment non obstante veredicto is thus defined by Mr. Tidd in stating the distinction between such judgment and a repleader: "Where the plea is good in form, though not in fact, or, in other words, if it contain a defective title, or ground of defense, by which it is apparent to the court, upon the defendant's own showing, that in any way of putting it he can have no merits, and the issue joined thereon is found for him, there, as the awarding of a repleader could not mend the case, the court, for the sake of the plaintiff, will at once give judgment non obstante veredicto; but where the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for the plaintiff or defendant, there, for their own sake, they will award a repleader. A judgment, therefore non obstante veredicto is always upon the merits, and never granted but in a very clear case." 2 Tidd, Pr. 922; 1 Chit. Pl. 656, 657; Bellows v. Shannon, 2 Hill, 86.

In the case at bar, the answer of the defendant denies each and every allegation of the complaint except such as are expressly admitted.

It is claimed by the plaintiff that in a subsequent part of the answer the averment that the defendant delivered, on demand, to the plaintiff the balance of the goods unsold, and the further averment that he paid to the plaintiff, on his demand, the sum of $30, are admissions of the plaintiff's ownership of the goods. Without determining this question, we may assume, as we do for the purposes of this decision, that the position of the plaintiff is correct, yet this is not a confession of the plaintiff's cause of action. The answer still takes issue upon the terms of the contract as alleged in the complaint, avers a different agreement, and states facts which present a material issue involving, among other things, the authority of Whipps to dispose of the goods in the manner alleged, and the right of the defendant to a credit for $58.10, the amount claimed to have been paid to J. W. Lough & Co. in pursuance of the terms...