Shahan v. Bayer Vehicle Co.
| Decision Date | 05 April 1917 |
| Docket Number | 30636 |
| Parties | W. H. SHAHAN, Appellant, v. BAYER VEHICLE COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Grinnell Superior Court.--P. G. NORRIS, Judge.
ACTION to recover the amount alleged to be due for personal services. General denial on the part of the defendants. A special plea of accord and satisfaction. Judgment for the defendants in the court below, based on the finding of accord and satisfaction. Plaintiff appeals.
Affirmed.
J. H Patton, for appellant.
Rayburn & Lyman, for appellees.
In the first count of plaintiff's petition, he seeks to recover for services rendered under a written contract entered into on or about the 10th day of April, 1914. This written contract provides that the defendants pay the plaintiff the sum of $ 65 per month for 10 approved sales of certain buggies manufactured by defendants, and that proportion for less, and, in either event, the actual expenses of the plaintiff while on the road. Further, the plaintiff was to receive $ 7.50 for each approved sale over 10. Under this contract, plaintiff worked in the state of Texas between April 14th and June 20th. Plaintiff claims he sold 15 buggies or rigs, for which he was entitled to receive a commission of $ 7.50 per rig, making a total amount of $ 112.50.
In the second count, plaintiff alleges that while working under this contract, and between the dates above set out, he performed extra services for the defendants not required by his contract, for which he asks the sum of $ 17.50.
In the third count, he alleges that the contract referred to in the first count was modified on June 14th, and that he worked for the defendants under the modified contract in the states of Colorado, Nebraska and Missouri; that this modified contract provided that plaintiff was to receive $ 2.50 per day and expenses, and necessary help, and railroad fare from the point where his work ceased, to Grinnell, Iowa, and the further sum of $ 7.50 for each approved sale over 9 per month; that, on the 28th day of June, 1914, he entered upon his work under this modified contract, and continued to work under this modified contract until November 7, 1914; that between said dates he worked 100 days, for which he was entitled to receive $ 250; that he incurred expenses for help in carrying out defendants' business during that time in the amount of $ 5.35, and that he expended railroad fare in the amount of $ 3.07, returning from Bethany, Missouri, to Grinnell, Iowa; that during that time he made 18 approved sales, for which he was entitled to receive $ 7.50 on each sale; that on account of such sales there is due him the sum of $ 67.50.
The fourth count alleges an overcharge on the part of the defendants against the plaintiff on a certain buggy handled by the defendants.
The fifth count alleges that, on account of the matters hereinbefore set out, there is due plaintiff $ 461.55, and that the defendants are entitled to a credit thereon of $ 269.75, leaving a balance of $ 191.80 due to the plaintiff.
The sixth count alleges that, on December 1, 1914, defendants sent plaintiff a check for $ 63.80, accompanied by a statement of account between plaintiff and defendants, said statement of account containing the following: "Debit item, check to balance account, $ 63.80;" that subsequently, the plaintiff protested to defendants, in a conversation had between plaintiff and a member of defendants' company, one J. E. Bayer, that the check did not represent a correct balance; that subsequently, on the 20th day of December, 1914, the plaintiff, acting under a misapprehension of the legal effect thereof, cashed said check, and, on January 7, 1915, before the original notice was served on the defendants of the commencement of this action, tendered back the $ 63.80, being the amount offered in settlement of account by defendants; that the defendants refused to accept the tender, and plaintiff says he is now willing and able to return it; that he is willing and ready to return to defendants the $ 63.80 at any time, and is willing to deposit the same with the court for defendants' benefit.
Plaintiff demands judgment for $ 191.80.
The defendants answer:
1st. By a general denial; then by a specific denial; then admit that the defendants are a copartnership, and J. E. Bayer is a member of the firm; admit entering into the contract alleged by plaintiff in his petition; admit the making of the modified contract; deny that plaintiff performed any services for the defendants, except under the contracts referred to in the petition; allege that, prior to the modified contract, plaintiff sold only 12 rigs, instead of 15 rigs, as claimed by plaintiff; that, under the modified contract, the plaintiff worked only 97 days, instead of 100, and allege that, after deducting the amount for which defendants are entitled to credit, there was, on December 1st, but $ 63.80 due; that this amount was paid by check, which was received by the plaintiff and subsequently cashed by him.
2d. That, after the plaintiff left the employment of the defendants, they rendered him a statement of account showing the amount due him; that, after the receipt of the said statement, the plaintiff denied the correctness of it, but was told by J. E. Bayer, a member of the firm, that the statement was correct; that the true amount due was $ 63.80; that they delivered him a check for that amount, and that they did not intend to pay him anything further; that, in full and final settlement of the amount due the plaintiff, the defendants delivered to the plaintiff their certain check for $ 63.80.
The plaintiff for reply denies especially the affirmative matters set out in this answer, and, in so far as the answer tenders a plea of settlement, denies that there has been a settlement of accounts, or of the matters in controversy herein between the plaintiff and defendants.
We have recorded herein the issues tendered by the parties in this suit that it may be known therefrom that the account sued on was unliquidated and in dispute between the parties, not only at the time the suit itself was instituted, but at the time it is claimed the accord and satisfaction took place.
Upon the issues thus tendered, the cause was tried to the court, a jury being waived.
At the conclusion of the testimony, the court found, as a matter of fact, that there was an accord and satisfaction of the matters in controversy between the plaintiff and the defendants, and dismissed plaintiff's petition, and entered judgment against plaintiff for costs. From the judgment entered against him, plaintiff appealed.
As this is a law action, it is triable in this court only upon error. Inasmuch as the court did not consider or determine the case upon the merit of the controversy, but disposed of it entirely upon the ground that there was an accord and satisfaction, the controversy in this court clusters around but two propositions:
(1) Was there a plea of accord and satisfaction presented by the defendants? It is contended by the plaintiff that there was not, and it is urged that there was error in admitting evidence tending to show this defense, on the ground that such evidence is irrelevant to any issue tendered.
(2) Did the court err in finding as a matter of fact that there was an accord and satisfaction, assuming that such plea had been properly presented?
If it be found, upon an examination of this record, that no plea of accord and satisfaction was presented for the determination of the court, then the court erred not only in the admission of evidence tending to establish such issue, but in considering it an issue in the cause. It is fundamental that the evidence must be confined to the point in issue, and a party has a right to have excluded any evidence tending to support an issue not tendered, and the court has no right to consider or determine a case upon an issue not presented, over the objection of the other party.
We first address ourselves to this question: Does the record present an issue of accord and satisfaction? It is true the answer does not plead in terms accord and satisfaction, but, under our form of pleading, technical nicety is not required. It is the duty of the pleader to present for the consideration of the court the ultimate facts which he intends to establish by evidence, which, when established, lead to the ultimate conclusion, whether of law or fact, which he desires the court to consider. Plaintiff, in the sixth count of his petition, evidently anticipating this defense, admits: That he received the check for $ 63.80; that it was accompanied by a statement of his account; that the statement disclosed that the check was in full of the account; that, after receiving the account and the check, he had further conversation with a member of defendants' firm, and informed him that the check did not represent the true balance; that, after this conversation, in which the defendants asserted that that was the balance due, and all that they would pay, he cashed the check and retained the money until the day this suit was commenced, when he tendered it back. To excuse his act, he says that he cashed it under a misapprehension of the legal effect of so doing.
The defendants plead that, after deducting all credits and an overpayment of $ 3.95, there was then due the plaintiff but $ 63.80; that this amount was paid to the plaintiff by check that this check was cashed by the plaintiff; that, at the time they sent the check, they sent him a statement showing that this amount was the balance due as claimed by the defendants; that, after receiving the statement and the check, plaintiff...
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