Sorenson v. Townsend

• Decision Date: 10 November 1906
• Docket Number: 14,473
• Citation: 109 N.W. 749,77 Neb. 499
• Parties: CHRIS SORENSON, APPELLEE, v. ERWIN TOWNSEND, APPELLANT
• Court: Nebraska Supreme Court

109 N.W. 749

77 Neb. 499

CHRIS SORENSON, APPELLEE, v. ERWIN TOWNSEND, APPELLANT

No. 14,473

Supreme Court of Nebraska

November 10, 1906

APPEAL from the district court for Brown county: WILLIAM H WESTOVER, JUDGE. Reversed.

REVERSED.

P. D McAndrew and Kirkpatrick & Schwind, for appellant.

A. W Scattergood and L. K. Alder, contra.

ALBERT, C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

The plaintiff (appellee) brought this suit to recover the remainder due on an alleged express contract of service. He alleges in his petition that in November, 1902, he entered into an oral contract with the defendants, whereby the defendants agreed to pay him the sum of $ 60 for the service of himself and team; that under and by virtue of said contract the plaintiff served the defendants, by himself and team, from the 15th day of November, 1902, to the 10th day of June, 1903, and duly performed all his part of the said contract. But one of the defendants answered, and his answer is as follows: "Comes now the defendant, Erwin Townsend and answering plaintiff's petition for himself, and no one else, says: (1) That he admits that he and defendant, Melvin Hagerman, were in partnership running a dray line in Fairfax, S. D., in the year 1902, and that they hired the plaintiff to work for them on their said dray line with his horses and wagon, and that plaintiff did work for them on said dray line during a part of each of the months set forth in plaintiff's petition, and that the said firm bought a lumber wagon of the defendant. (2) This defendant, further answering plaintiff's petition, says and alleges the facts to be that the said firm engaged and contracted with the plaintiff to work for them on their said dray line for the agreed sum of $ 40 a month, and furnish board and lodging for himself and team, and that said firm fully complied with their part of the said contract in all particulars, and paid the plaintiff in full for said wagon and for all the said work and labor that the plaintiff performed for said firm, and fully settled with the plaintiff, and this defendant denies that there is any sum whatsoever due the plaintiff thereon. (3) Further answering plaintiff's petition, this defendant says he denies each and every material allegation in plaintiff's petition not herein specifically admitted, and denies that said firm of Townsend & Hagerman contracted with or agreed to pay the plaintiff for the services of himself and team on said dray line the sum of $ 60 a month, and denies that plaintiff worked and labored for said firm during all the time specified in plaintiff's petition." The jury were instructed on the theory that a reply in the nature of a general denial had been filed to the defendant's answer, but it does not appear in the record. The cause appears to have been submitted on the theory that the other defendant was not in court, and as no question is raised in that regard further reference to him is unnecessary. The plaintiff introduced evidence tending to establish the allegations of his petition and made a prima facie case. The answering defendant was sworn as a witness, and from his testimony it would seem that the negotiations between the plaintiff and the defendants were conducted by him. He testified, in effect, that in his first conversation with the plaintiff with respect to entering the employment of the defendants he informed the plaintiff that they could not pay him more than $ 40 a month; the plaintiff insisted on $ 60 for the first month, whereupon the defendants informed him that they would give $ 60 for the first month, and $ 40 a month afterwards, and it was agreed between them that the plaintiff would enter their employment on those terms; that plaintiff did not proceed under this agreement, but before commencing to work for the defendants made a new contract with them, whereby it was agreed that the plaintiff should work for the defendants one month for $ 60, no reference being made to his employment or the wages he...