Vallancey v. Hunt
| Decision Date | 31 December 1910 |
| Citation | 129 N.W. 455,20 N.D. 579 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Rolette county; Honorable John F. Cowan J.
Action by Richard G. P. Vallancey against Martha Hunt and John C Hunt. From a judgment in favor of defendants, plaintiff appeals.
Reversed with directions.
Judgment reversed and judgment entered in favor of plaintiff.
W. H. Thomas and Skulason & Burtness, for appellant.
New matter must be specially pleaded. Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Bliss, Code Pl. §§ 323, 339, et seq.; Fitnam, Trial Proc. § 567; Iselin v. Simon, 62 Minn. 128, 64 N.W. 143; 1 Enc. Pl. & Pr. p. 830; Reynolds v. Reynolds, 45 Mo.App. 622; Riggins v. Missouri River Ft. S. & G. R. Co. 73 Mo. 598.
To rescind a contract, one must act with reasonable despatch, before third party's rights intervene. Burton v. Stewart, 3 Wend. 236, 20 Am. Dec. 692; Whitcomb v. Hardy, 73 Minn. 285, 76 N.W. 29; Grymes v. Sanders, 93 U.S. 55, 23 L. ed. 798, 10 Mor. Min. Rep. 445; Hayward v. Eliot Nat. Bank, 96 U.S. 611, 24 L. ed. 855; McLean v. Clapp, 141 U.S. 429, 35 L. ed. 804, 12 S.Ct. 29; Lockwood v. Fitts, 90 Ala. 150, 7 So. 467; Johnson v. Whitman Agri. Co. 20 Mo.App. 100; Booth v. Ryan, 31 Wis. 45; Thomas v. McCue, 19 Wash. 287, 53 P. 161; Aultman, M. & Co. v. Mickey, 41 Kan. 348, 21 P. 254; Hercules Iron Works v. Dodsworth, 57 F. 556; Benjamin, Sales, 1899 ed. p. 736; J. I. Case Threshing Mach. Co. v. Vennum, 4 Dak. 92, 23 N.W. 563; Kingman v. Watson, 97 Wis. 596, 73 N.W. 438; James v. Bekkedahl, 10 N.D. 120, 86 N.W. 226; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 410, 61 N.W. 145.
C. R. Gailfus and Burke, Middaugh, & Cuthbert, for respondent.
To constitute estoppel there must have been a duty to speak, and the adverse party must have been misled. 16 Cyc. Law & Proc. p. 770; Smith v. Roach, 59 Mo.App. 115; Blair v. Wait, 69 N.Y. 116; Welland Canal Co. v. Hathaway, 8 Wend. 480, 24 Am. Dec. 51; Modern Woodmen v. Davis, 184 Ill. 236, 56 N.E. 300; Supreme Tent, K. M. v. Stensland, 206 Ill. 124, 99 Am. St. Rep. 137, 68 N.E. 1098; Combs v. Cooper, 5 Minn. 254, Gil. 200; Jennings v. Todd, 118 Mo. 296, 40 Am. St. Rep. 373, 24 S.W. 148; Brookhaven v. Smith, 118 N.Y. 634, 7 L.R.A. 755, 23 N.E. 1002.
Action to recover the possession of personal property consisting of a threshing machine and traction engine. Plaintiff bases his right to recover the possession of such property under a chattel mortgage dated September 3, 1901, and given to secure the payment of a promissory note for the sum of $ 645, executed and delivered by defendant to one James O'Loughlin on said date, and transferred to plaintiff prior to the commencement of the action. The complaint alleges the execution and delivery of said note and mortgage by defendant to O'Loughlin, and the assignment thereof by the latter to the plaintiff, as aforesaid. It also alleges nonpayment of the note, a demand for the possession of the property, and that defendants wrongfully refused to surrender possession thereof to the plaintiff. The prayer is in the usual form. The answer is a general denial merely.
At the trial defendants, over plaintiff's objection, were permitted to show that such note was given to O'Loughlin as a portion of the purchase price of the threshing machine and engine described in the mortgage, and that the oral agreement between defendants and O'Loughlin was to the effect that if the machine, after a fair trial, did not work satisfactorily, all papers delivered by defendants to O'Loughlin representing the purchase price of the rig should be returned to defendants, and defendants should return such rig to O'Loughlin. Defendants also were permitted to prove that such machine did not work satisfactorily, and that they, from time to time, notified O'Loughlin thereof. The proof shows, however, that the defects complained of were remedied from time to time, and that defendants have never returned the rig, but on the contrary used it during the entire threshing seasons of 1901, 1902, 1903, and several seasons thereafter. Defendants also were permitted to show, over plaintiff's objection, that they were induced by O'Loughlin to keep the machine under the promise that he, O'Loughlin, would make good to them all the damages which they suffered by reason of the defects aforesaid, and they were permitted to prove that O'Loughlin warranted the machine to be a good machine in every respect; that there was a breach of such warranty, and that the damages on account of such breach or warranty exceed the amount due on said note. At the conclusion of the testimony both parties moved for a directed verdict, whereupon the jury was excused from further service, and the court in due time made findings of fact and conclusions of law favorable to defendants, and ordered the action dismissed. From the judgment rendered on such findings and conclusions, plaintiff appeals.
Numerous assignments of error are urged by appellant's counsel, but those relied upon for a reversal of the judgment may be summarized as follows:
1. The alleged improper admission under the general denial of evidence duly objected to.
2. Error in holding that the contract of sale was conditional, and not absolute.
3. That defendants waived their right to urge any of the defenses urged by them, and as to plaintiff they are estopped to urge such defenses.
Regarding the defense of conditional sale, it is, we think, entirely clear from the record that, even if the sales contract was conditional when made, that it became an absolute sale when defendants were induced to keep the machinery under the promise on O'Loughlin's part that he would make good to them all damages suffered by reason of defects in the machinery or breach of warranty.
The defendant John C. Hunt testified that he gave to O'Loughlin, as a part of the consideration for the purchase price of this machinery, deeds to three quarter sections of land, and that O'Loughlin agreed to hold such deeds, and not place them of record until Hunt had an opportunity to try the machine; that thereafter, and in the month of September, Hunt learned of the fact that O'Loughlin had placed said deeds on record, but he never at any time protested or objected thereto, but on the contrary continued to use the threshing rig throughout the threshing season, not only of that year but for four or five years thereafter; not only this, but he paid one note given as a portion of the purchase price of said rig and paid the interest on the $ 645 note; not only this, but he was present at the time the note in suit was indorsed by O'Loughlin to plaintiff, and he actually handed the note to O'Loughlin for the purpose of indorsement over to plaintiff. All of these acts on defendant's part are wholly inconsistent with his theory that such sale never became absolute, and they unmistakably show an executed sale. The sale having become an executed contract, it follows that plaintiff, as the assignee of the note and chattel mortgage, which are past due and unpaid, has a special property in such separator and engine, and is entitled to the possession thereof for the purpose of foreclosing the chattel mortgage, unless defendants have established a legal defense thereto, and this brings us to the question whether, under the general denial in the answer, it was error to permit defendants to prove a warranty, a breach thereof, and damages resulting from such breach. We are entirely clear on principle and authority that such evidence was wholly inadmissible. Manifestly, such defense consisted of new matter, and must be specially pleaded. It was in the nature of a set-off or counterclaim. It did not directly tend, in the least, to deny or refute any of the allegations of the complaint. The authorities are practically unanimous to the effect that such a defense cannot be proved under a general denial.
In 31 Cyc. Law & Proc. p. 697, it is said: "A counterclaim or set-off must, under Code procedure, always be specially pleaded." Citing many authorities from Code states including Hogen v. Klabo, 13 N.D. 319, 100 N.W. 847. In 34 Cyc. Law & Proc. p. 1417, the correct rule regarding the right of a defendant in a replevin action to interpose a set-off or counterclaim is stated as follows: In the note at the bottom of the page is the following: " Many authorities are therein collated holding that, in an action of replevin, defendant may plead matters by way of set-off and counterclaim. Why such holding, if, as here contended, all...
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