Webster v. McLaren

• Decision Date: 06 November 1909
• Citation: 123 N.W. 395,19 N.D. 751
• Parties: WEBSTER v. McLAREN.
• Court: North Dakota Supreme Court

19 N.D. 751

123 N.W. 395

WEBSTER

v.McLAREN.

Supreme Court of North Dakota.

Nov. 6, 1909.

Syllabus by the Court.

An answer does not state, nor does the evidence show, a defense of accord and satisfaction when it states or shows only that there was a computation of the amounts mutually due between the parties, and that it was agreed that the accounts due should mutually offset each other, although one sum was less than the other. There is no showing nor allegation that there was any consideration for the agreement, or that it was executed by satisfactions, releases, or payment pursuant to such agreement, or that there was any dispute between the parties as to the amount due.

A motion for judgment, notwithstanding the verdict should not be granted, unless it appears fairly that the defect in pleading or insufficiency of evidence, cannot be supplied on another trial.

Appeal from District Court, Cavalier County; Kneeshaw, Judge.

Claim and delivery by Cady Webster against Colin McLaren. Judgment for defendant, and plaintiff appeals. Reversed.

Fred E. Smith, for plaintiff. Cleary & McLean, for defendant.

MORGAN, C. J.

Action in claim and delivery for property covered by a chattel mortgage. The jury found in favor of the defendant, and the plaintiff appeals from the judgment rendered on the verdict.

The errors specified in the settled statement of the case relate to the defense of accord and satisfaction, and whether such defense was properly pleaded in the answer and sustained by the evidence. The sufficiency of the answer was not attacked by demurrer, but by objections to the admission of any evidence in support of its allegations. Although the action had been pending for a long time, this defense was not pleaded until after the plaintiff had rested her case at the trial. Leave to file an amended answer setting up this new defense was opposed by the plaintiff, but the court permitted it on condition that, if it appeared later that plaintiff was taken by surprise, a continuance would be granted. There was no request for a continuance, which renders any objection to this ruling unavailing, even if it be conceded to have been error to allow the filing of the answer at that time. The practice of delaying amendments to pleadings until at the trial is not commendable, and to permit such amendments without terms may lead to injustice, which is not avoided or remedied by granting a continuance as a condition of allowing an amendment.

Plaintiff objected to the filing of the amended answer upon the further ground that it failed to set forth any defense. It remains, therefore, to determine whether the answer states a defense of an accord and satisfaction. After reciting several items of indebtedness from the plaintiff to the defendant, in the aggregate amounting to less than the amount due on the two notes to plaintiff and A. P. Webster, the answer alleges “that after these matters had been computed, as aforesaid, and the result arrived at as set forth in the last preceding paragraph, it was mutually agreed between the said Webster and this defendant that the amount due on the account of said Webster to this defendant should be applied to the satisfaction of the amount due from the defendant on the two notes set forth in the complaint, and that the said A. P. Webster should thereafter be released and discharged from any liability to this defendant by reason of said account; that the said A. P. Webster agreed to accept said discharge and release of said liability aforesaid as a full and complete satisfaction and discharge of any liability of this defendant for and on account of the said two notes, aforesaid; that this defendant and the said A. P. Webster thereupon separated with the mutual understanding that the said account of the said Webster to this defendant and the indebtedness of this defendant on the two notes aforesaid had been, and were, reciprocally satisfied and extinguished.” This alleges an agreement of accord, whereby plaintiff and A. P. Webster agreed to accept less than due to them, and it alleges an agreement of satisfaction, but it does not allege any fact showing an actual execution of the agreement. It fails to allege any dispute as to the mutual accounts, nor is it alleged, directly or inferentially, that there was any consideration for the agreement. It therefore fails to allege all the facts necessary to a...