M'Cormick Harvesting-Machine Co. v. Wilson

• Decision Date: 30 November 1888
• Parties: McCORMICK HARVESTING-MACHINE COMPANY <I>vs.</I> HILL H. WILSON.
• Court: Minnesota Supreme Court

39 Minn. 467

McCORMICK HARVESTING-MACHINE COMPANYvs.

HILL H. WILSON.

Supreme Court of Minnesota.

November 30, 1888.

Appeal by plaintiff from an order of the district court for Douglas county, Collins, J., presiding, refusing a new trial after verdict in its favor for $79.25. The action was to recover $1,422.62, on eight causes of action alleged in the complaint, those after the first being on promissory notes, and the first being thus stated: "That on the 31st day of December, 1882, the defendant was and still is indebted to this plaintiff on account of money had and received by the defendant to the use of this plaintiff, and on account of goods, wares, and merchandise sold and delivered by the plaintiff to the defendant at his request, in the full sum of $637.62, — no part of which amount has been paid by the defendant, though often demanded by this plaintiff.

That there is now due and owing this plaintiff from the defendant on the account aforesaid the sum of $637.62, with interest thereon at the rate of eight per cent. per annum." For answer to the first cause of action the defendant denied any indebtedness on the account, and alleged "that on the first day of May, 1883, this defendant had a full settlement of accounts with the plaintiff, and then and there fully paid and discharged to said plaintiff the amount mentioned in said first cause of action." The defences to the other causes of action are stated in the opinion.

Reynolds & Stewart and C. D. Kerr, for appellant.

Clapp & Woodard, for respondent.

GILFILLAN, C. J.¹

The evidence of payments reducing the amount due at the time of the statement of accounts was proper, because the complaint as to the items included in that cause of action did not rely on the account stated, but, without alleging the accounting, declared on the original transactions; and where the issue tendered and accepted treats the original transactions as still open for proofs, either party may offer proofs upon them. Northern Light Packet Co. v. Platt, 22 Minn. 413.

As to the several notes described in the complaint after the first two, (those two being barred by the statute of limitations,) the answer sets up good defences, to wit: that they were made and placed in the hands of a third person to be delivered to plaintiff and have effect, upon conditions stated, and that the events on which they were to be so delivered never happened, but that, in violation of such conditions, the plaintiff got possession of the notes. If this were true, then the notes never became operative as contracts. But the proofs wholly failed to make out these defences. On the...