Savage v. Aiken

• Decision Date: 08 June 1887
• Citation: 33 N.W. 241,21 Neb. 605
• Parties: SAVAGE, ADM'R, ETC., v. AIKEN.
• Court: Nebraska Supreme Court

21 Neb. 605

33 N.W. 241

SAVAGE, ADM'R, ETC.,

v.AIKEN.

Supreme Court of Nebraska.

June 8, 1887.

Syllabus by the Court.

On the twenty-sixth day of July, 1886, plaintiff instituted his action against defendant upon a count for money had and received. Upon the trial, for the purpose of sustaining his case, he introduced evidence tending to prove an account stated on the twelfth of August, 1871. He also introduced a stipulation entered into between the parties in a suit pending in the circuit court of Adams county, Illinois, dated October 25, 1877, whereby defendant consented to a judgment in that action. The stipulation was admitted over the objection of defendant. Held error, as not tending to prove the allegations of the petition.

A plaintiff can recover only on the cause of action stated in his petition. It is not the province of a reply to introduce a new or different cause of action from that stated in the petition.

Where an action is prosecuted upon an account stated by a defendant, and in which he charges himself with interest on money in his hands at the rate of 10 per cent. per annum, this will imply a promise to pay interest at that rate, if the proof shows the statement to have the effect of an account stated.

If, in an action for money, it is shown that payments have been made or money collected upon the same account after the commencement of the suit, by judgment in a foreign court or otherwise, the recovery can only be for the balance remaining due. But, before a defense of that kind can be made, the issue must be presented in the pleadings.

Error from Gage county.

A. Hardy, for plaintiff.

L. W. Colby and Hazlett & Bates, for defendant.

REESE, J.

This action was commenced in the district court of Gage county on the twentieth day of July, 1876. The allegation of the petition is “that on the first day of July, 1876, the defendant Charles Savage was indebted to the plaintiff in the sum of eleven thousand dollars for so much money by the defendant had and received for the use of the plaintiff, and which said sum of money was then due and payable; yet the defendant has not paid” the same, etc. An attachment was obtained on the ground of the non-residence of Savage, and his real estate was levied upon and sold.

It is developed by the evidence that C. A. Savage, the defendant in the action, now deceased, resided in Quincy, Illinois; the plaintiff therein in New Hampshire; and that considerable correspondence was kept up between them,--each knowing the residence of the other; and that Savage had, on two or three occasions, sought to sell Aiken the lands in this state on his indebtedness to him. Apparently without noticing these offers, Aiken caused the attachment proceedings without Savage's knowledge; and purchased the land at sheriff's sale. After the sale, he sent the original claim to an attorney, with instructions to bring suit for the whole amount, which was done; and on the twenty-seventh day of October, 1877, a written stipulation for judgment, signed by Savage, was filed, and on which a judgment for $17,000 was rendered. A few days afterwards, but during the same term of court, defendant in error notified his attorney that the Nebraska lands had been sold for “something over five thousand dollars,” and directed that that amount should be deducted from the judgment. The attorney notified Savage of the fact, and made the deduction, and caused the judgment to be finally entered for $11,073.33. The deduction, however, was made prior to giving the information to Savage. This was the first that Savage knew of the proceedings in this state. There seems to have been nothing in Savage's conduct to warrant the duplicity on the part of the defendant in error; but, as its consideration is not of vital importance, we need not notice it further at this time. It is proper, however, to remark that courts of justice are established for the purpose of protecting rights and enforcing remedies in a legitimate method, and not for the purpose of aiding designing men to take undue and dishonest advantages of others by reason of the liberal provisions of our laws.

Subsequent to this, Savage applied to the district court of Gage county to open the judgment, under the provisions of section 82 of the Civil Code, and upon the opening of the judgment he filed his answer, in which he denied the indebtedness, and alleged, in substance, that in the year 1863 plaintiff and defendant entered into a copartnership in the business of buying and selling lands in the state of Missouri; that, by the terms of said copartnership, plaintiff was to furnish the capital necessary to carry on the business, and defendant was to do all other things necessary in conducting it; that plaintiff furnished $11,400, which was invested in real estate, but that, contrary to the provisions of their contract, defendant was compelled, for the purpose of carrying on the business, to employ his own means in the payment of taxes and other expenses; that the last business transacted by said firm was in the year 1869; that subsequent to that year, and prior to the first day of January, 1871, plaintiff had received from said firm $9,613.75; that no settlement of the business of said firm had ever been had; and that, on a fair accounting, but a trifling sum, if anything, would be found due plaintiff from defendant. The statute of limitations is also pleaded in the usual form.

On the eighth day of March, 1884, the death of defendant was suggested, and on the twenty-first day of December, 1885, the final order of revivor was made, and the cause revived in the name of plaintiff in error as administrator of the estate of Charles A. Savage, deceased. On the first day of June, 1886, defendant in...