Smith v. Wigton

• Decision Date: 26 October 1892
• Citation: 35 Neb. 460,53 N.W. 374
• Parties: SMITH v. WIGTON ET AL.
• Court: Nebraska Supreme Court

35 Neb. 460

53 N.W. 374

SMITH

v.WIGTON ET AL.

Supreme Court of Nebraska.

Oct. 26, 1892.

Syllabus by the Court.

1. Defendant having filed an answer to the petition, and plaintiff thereupon filing an amended petition, to which defendant answers, without making the original answer part of the second answer, the case stands for trial on the amended pleadings, and the original pleadings are disregarded.

2. Where the defendant claims money as due him under a contract with the plaintiff, he must plead the facts showing his right to retain the same.

3. In an action, in substance, for money had and received, a general denial only puts in issue the receipt of the money.

Error to district court, Madison county; NORRIS, Judge.

Action by William G. Smith against Wigton & Whitham to recover a certain sum of money, with interest. Judgment for defendants. Plaintiff brings error. Reversed.Brome, Andrews & Sheean and H. C. Brome, for plaintiff in error.

J. B. Barnes, for defendants in error.

MAXWELL, C. J.

1. This action was brought by the plaintiff against the defendants to recover the sum of $3,500.47, with interest and costs. The amended petition is as follows: “Comes now the plaintiff, and by order of court files this, his amended petition, and for cause of action against the defendant states: First, that on or about the 23d day of March, 1888, the defendant received from the clerk of the district court of Platte county, Nebraska, the sum of $10,795.25, to and for the use of plaintiff; second, that on or about the 2d day of April, 1888, and before the commencement of this action, plaintiff demanded an accounting, settlement, and payment thereof from the defendants; third, that the defendants have failed to account for or pay over to said plaintiff any part of said sum except the sum of $7,668.50, leaving a balance still due, owing, unpaid, and not accounted for to this plaintiff amounting to $3,126.75, which last-named sum the defendants refuse to pay plaintiff; fourth, that said defendants did not obtain said money from said clerk of the district court of Platte county, Nebraska, under or by virtue of any contract with this plaintiff. Wherefore plaintiff prays judgment against the defendants for the sum of $3,126.75 and interest thereon at 7 per cent. per annum from March 23, 1888, and the costs of suit.” It appears that prior to the filing of the amended petition the plaintiff had filed a petition in which he did set out in substance a contract of employment of the defendants, and that they had prosecuted the suit to judgment, and collected thereon the sum of $10,795.28, 40 per cent. of which was to be retained as...