Torrey v. United States
| Decision Date | 22 April 1890 |
| Parties | TORREY v. UNITED STATES. |
| Court | U.S. District Court — Eastern District of Missouri |
Jay L Torrey and E. W. Pattison, for plaintiff in error.
Geo. D Reynolds, U.S. Atty.
Plaintiff's petition contains two counts, the first laying the damages at $525 and the second at $3,000, for other violations of the contract. Act Cong. March 3, 1887, c. 359, Sec. 2, provides that the circuit courts shall have concurrent jurisdiction with the court of claims in all actions against the United States where the amount involved exceeds $1,000, and does not exceed $10,000.
In this case the plaintiff sues in the first count to recover a balance alleged to be due on a contract with the government to deliver 475,000 pounds of beef cattle (either steers or cows) at the Shoshone Indian agency. It is alleged in the petition that the price agreed to be paid was $3.50 per hundred on the hoof, but that the government only allowed and paid $2.80 per hundred for such cows as were delivered, and that, in consequence of its failure to pay for the cows at the price stipulated in the contract, there is a balance still due in the sum of $525. The government answers the complaint, first, by a general denial of all the allegations as it is permitted to do under the code of procedure in this state. It then pleads specially the following facts, in substance: That the contract in question on which plaintiff sues was for 475,000 pounds of beef, at the price of $3.50 per hundred on the hoof,-- a deduction of 20 per cent., however, to be made from such price, in paying for all cows delivered; that plaintiff and the defendant alike understood such to be the contract; that the cattle delivered under the contract were accepted and paid for in pursuance of such understanding; that plaintiff accepted the payment so made, in full satisfaction and discharge of all claims under said contract; but that in drafting the agreement the clause with reference to deducting 20 per cent. of the stipulated price in paying for cows was accidentally omitted, and that the omission was not discovered till long after the contract was made. There is a motion to strike out the special plea, on the ground that it is an equitable defense not permissible in a suit at law. I am satisfied that the motion ought not to prevail.
1. The matter pleaded, in my judgment, is not exclusively an equitable defense. It is averred in the...
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