McCarthy Bros. Co. v. Hanskutt
| Decision Date | 25 June 1912 |
| Citation | 137 N.W. 286,29 S.D. 535 |
| Parties | McCARTHY BROS. CO. v. HANSKUTT. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Douglas County; R. B. Tripp, Judge.
Action by the McCarthy Brothers Company against James Hanskutt. From a judgment for defendant, plaintiff appeals. Reversed, with directions.
A. L Brice and John W. Addie, for appellant.
Walker & Gurley, for respondent.
On November 26, 1909, plaintiff commenced this suit against defendant to recover a balance of $1,124.32 claimed to be due upon an account consisting of numerous items of both debit and credit. As shown by the bill of particulars, the debit charges against defendant commenced April 23, 1901, and ended April 26, 1904; the last item being $97.50 cash claimed to have been advanced by plaintiff for defendant on that date. All the debit items charged against defendant accrued more than six years before the commencement of the action, with the exception of the last item of $97.50. The items charged against defendant amount in the whole to $4,119.51. The credit items in favor of defendant amount in the whole to $2,995.19, thus leaving an apparent balance of $1,124.32 in favor of plaintiff. All the credit items accrued more than six years before the commencement of the suit, excepting the last five, which are as follows: March 25, 1904, note $1,000 same date, check for $32.79; same date, currency $10; March 30, 1904, check, $16.15; same date, check, $38.63. So far as affects the question presented on this appeal, defendant by way of answer interposed the following defenses: (1) The statute of limitations against the entire account; (2) alleged that the $1,000 note of March 25, 1904, was given by defendant and accepted by plaintiff in full settlement and satisfaction of the entire account; (3) pleaded that the item of $97.50 was paid by the last four items on the credit side that said last four items on the credit side were paid by defendant and accepted by plaintiff as payment and satisfaction of the said last item of $97.50 on the debit side. On the trial plaintiff offered testimony tending to show that the $1,000 note was given only as a part payment to be applied on the balance then unpaid on said account, and the record shows that thereafter the said note was paid in full by defendant. Defendant also offered testimony tending to show that the item of $97.50 was paid and satisfied by the last four items on the credit side of the account and was so understood and intended, and that said debit charge of $97.50 and said last four credit items never were in reality any part of the said account. The jury found a general verdict in favor of plaintiff for $1,026.82; this being the balance of the account as claimed by plaintiff less the item of $97.50. The court also submitted to the jury special interrogatories or findings to be answered by the jury in addition to the general verdict. One interrogatory was as follows: "Was the thousand dollar note of March 25, 1904, given by Mr. Hanskutt and received by McCarthy Bros. Co. in full settlement and payment of all items in this bill of particulars of date prior thereto?" Which interrogatory the jury answered, "No." Another interrogatory was as follows: "Did the plaintiff advance for defendant this last item of $97.50, in the bill of particulars of April 26, 1904?" Which interrogatory the jury answered, "No." These are the only interrogatories material to the questions on this appeal. Thereafter the defendant moved the court for judgment against plaintiff, dismissing plaintiff's action notwithstanding the general verdict; said motion being based upon the pleadings, plaintiff's bill of particulars, all the files and records in the cause, the evidence taken therein, and the special findings of the jury in answer to the interrogatories submitted. Upon the hearing of said motion the court rendered judgment and made order reciting: To this ruling and action of the court the appellant excepted and now assigns the same as error. We are of the opinion that appellant is right in its contention, and that the court erred in dismissing plaintiff's cause of action, and that the court should have rendered judgment in favor of plaintiff in accordance with the general verdict. There is no inconsistency between the general verdict and the special findings above referred to. By deducting the amount of $97.50 from the balance of $1,124.32 claimed by plaintiff, the jury in effect found that plaintiff had not advanced said item, the same as found by the special verdict. By the general...
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