Meyer v. Rosenblatt & Son
| Decision Date | 21 March 1930 |
| Docket Number | 27015 |
| Citation | 229 N.W. 771,119 Neb. 471 |
| Parties | E. MEYER, APPELLANT, v. ROSENBLATT & SON, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
In an action for merchandise sold and delivered, wherein defendant counterclaimed, presenting the issue of plaintiff's oral agreement to repay overpayments, an instruction to find for defendant on proof that defendant made payments relying on plaintiff's agreement to repay any overpayments held erroneous as assuming the existence of such agreement, this being controverted and presenting an issue for the jury under the evidence.
Where, in an action for merchandise sold and delivered, defendant counterclaimed relying on plaintiff's agreement to repay overpayments, it was error to fail to instruct with reference to issues of account stated, and accord and satisfaction, tendered by plaintiff in his reply, and which were supported by competent evidence, since a party is entitled to instructions on his theory of the case, presented by the pleadings and supported by the evidence.
Where one has voluntarily, with full knowledge of the facts, paid a disputed demand, which he claimed he did not owe, he cannot, ordinarily, recover it back on the ground of its invalidity.
Where plaintiff, suing for merchandise sold and delivered, pleaded in his reply to defendant's counterclaim based on an alleged agreement to repay overpayments, that the payments were voluntarily made, an instruction that defendant could not recover back money paid under threat of lawsuit, but to find for defendant if he proved that he paid money relying on plaintiff's agreement to repay overpayments and to protect credit, held wholly insufficient to present the law as to voluntary payments.
Appeal from District Court, Douglas County; Fitzgerald, Judge.
Action by E. Meyer against Rosenblatt & Son, a copartnership, wherein defendants filed a counterclaim. Judgment for defendant, and plaintiff appeals.
Reversed and remanded.
Monsky, Katleman & Grodinsky, for appellant.
Brogan, Ellick & Raymond, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, EBERLY and DAY, JJ., and LANDIS, District Judge.
Plaintiff below, appellant here, brought this action against defendant, appellee here, for merchandise sold and delivered. Defendant admitted the account sued on in full, but counterclaimed, presenting the issue of oral agreements of plaintiff to refund an aggregate amount of payments, represented by counterclaim, to defendant in event plaintiff did not produce receipts for the merchandise represented by such items, which defendant asserted was not delivered.
Plaintiff in his reply and answer denied the issue presented in the counterclaim, alleged an account stated, accord and satisfaction, and voluntary payments. Verdict was returned for defendant for the difference between the admitted account and counterclaim, judgment entered, and upon overruling of motion for new trial plaintiff appeals.
Instruction No. 4 given by the court on its own motion is as follows: "You are instructed that under the law defendant cannot recover back money, simply because it was paid under threat of a lawsuit; but if you find that defendant has proved by a preponderance of the evidence that the goods in the disputed items were not delivered to defendant by plaintiff, and that defendant paid the money to plaintiff relying upon the agreement of plaintiff to repay defendant for any payments made by defendant to plaintiff for goods undelivered, and that such payments by defendant to plaintiff were made to protect defendant's credit and relying upon plaintiff's agreement to repay defendant for any overpayment, then you should return a verdict for defendant in such sum as you may find defendant has proved under the above rule." (The italics are ours.)
The pleadings and evidence present an issue on the agreement to...
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