Regan v. Jones

• Citation: 105 N.W. 613,14 N.D. 591
• Parties: REGAN et al. v. JONES.
• Decision Date: 29 November 1905
• Court: North Dakota Supreme Court

14 N.D. 591

105 N.W. 613

REGAN et al.

v.JONES.

Supreme Court of North Dakota.

Nov. 29, 1905.

Syllabus by the Court.

Where facts which might be used either as a defense or counterclaim are pleaded in the answer as a defense merely, and the answer demands no affirmative relief indicating that a counterclaim was intended, no reply is necessary.

In an action on a note by the legal representatives of the deceased payee, the defendant sought by his own testimony to prove when and where the note was given and who was present when the transaction with the testator took place pursuant to which the note was afterwards given, in order to lay a foundation for the testimony of a third person, by whom he expected to prove what the bargain was. Held, that the testimony was properly excluded, under section 5653, Rev. Codes 1899.

Testimony by the defendant in such action to the effect that the note in suit was the only note he ever gave to the deceased, and that he never had any other transaction with the deceased, was likewise prohibited by section 5653.

Errors assigned on the rulings of the trial court sustaining objections to questions propounded to a witness cannot be reviewed, in the absence from the record of any offer of proof showing what facts the appellant expected to establish by the questions objected to, where the questions themselves do not disclose the materiality and competency of the expected answers.

Appeal from District Court, Pierce County; John F. Cowan, Judge.

Action by Thomas Regan and others as executors of the last will of T. S. Edison, deceased, against A. G. Jones. From a judgment for plaintiffs, defendant appeals. Affirmed.A. E. Coger and Burke & Middaugh, for appellant. Scott Rex, for respondents.

ENGERUD, J.

Action by the executors of the last will of Thomas S. Edison, deceased, to recover on a promissory note given by the defendant to the plaintiffs' testator. A verdict was directed in favor of plaintiffs for the full amount claimed. The defendant has appealed from the judgment entered on the verdict.

The defendant admitted the execution and delivery of the note, and “as a defense” alleged that the note was given in payment of the purchase price of some stallions, and that there had been a breach of the warranty under which the stallions were sold, and also a failure to comply with the seller's agreement to furnish the pedigrees of the horses sold. After the jury had been impaneled, the defendant moved for judgment, on the ground that the answer pleaded a counterclaim, and the plaintiff had failed to reply. The motion was overruled, and we think the ruling was right. The sufficiency of the facts pleaded to constitute a counterclaim is open to grave doubt; but, even if we assume that the facts pleaded were sufficient to entitle defendant to recover damages for a breach of warranty, the motion was properly denied, because the answer did not purport to set forth a counterclaim. The answer pleaded the seller's breach of the agreement as a defense for failure of consideration. The answer in express terms declared that the facts were pleaded as a defense, and the prayer for judgment did not indicate that the defendant regarded the answer as pleading anything but a defense which entitled him to a dismissal of the action. Under such circumstances the answer will not be construed as pleading a counterclaim. Bates v. Rosekrans, 37 N. Y. 409;Society v. Cuyler, 75 N. Y. 511;Brannan v. Paty, 58 Cal. 330;Stowell v. Eldred, 39 Wis. 614, 630;Ravicz v. Nickells, 9 N. D. 536, 84 N. W. 353.

The contract of sale, in connection with which it was alleged the note was given, was a verbal one between the defendant and the deceased. The defendant was precluded from testifying in relation to that transaction by section 5653, Rev. Codes 1899, which reads as follows: “* * * In civil actions or proceedings by or against executors, administrators, heirs at law or next of kin, in which judgment may be rendered or order entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party.” The defendant attempted to prove that the note was given for stallions, and that the terms of sale were as alleged in the answer-by third persons who were present when the bargain was made. None of these persons, however, were able to testify that the transaction at which they were present, was the transaction which involved the note in suit. The testimony of these witnesses was therefore clearly irrelevant, unless it could be shown by competent testimony that the transaction in reference to which they had knowledge was the one...