Young Elec. Sign Co. v. Hotel Last Frontier Corp.

• Decision Date: 15 November 1962
• Docket Number: No. 4532,4532
• Citation: 78 Nev. 457,375 P.2d 859
• Parties: YOUNG ELECTRIC SIGN COMPANY, a corporation, Appellant, v. HOTEL LAST FRONTIER CORPORATION, a corporation, Respondent.
• Court: Nevada Supreme Court

Page 859

375 P.2d 859

78 Nev. 457

YOUNG ELECTRIC SIGN COMPANY, a corporation, Appellant, v. HOTEL LAST FRONTIER CORPORATION, a corporation, Respondent.

No. 4532.

Supreme Court of Nevada.

Nov. 15, 1962.

Rehearing Denied Nov. 28, 1962.

Samuel S. Lionel, E. M. Gunderson, Las Vegas, for appellant.

G. William Coulthard and Franklin N. Smith, Las Vegas, for respondent.

BADT, Chief Justice.

This appeal presents but two issues for our determination. The first has to do with the pleadings, and the second deals with the sufficiency of the evidence to support the findings.

(1) The parties will be referred to as they were in the court below. Plaintiff, Young Electric Sign Company, appellant here, alleged simply in its complaint that 'on or about April 3, 1957, plaintiff leased certain electric signs to defendant at the agreed monthly rental of $500 per month commencing as of March 18, 1957,' and that 'by reason of the said agreement defendant owes plaintiff the sum of $3,750, with interest from January 1, 1959.'

Defendant's answer, following its general denial, contained an affirmative defense, alleging that on or about March 14, 1955, New Frontier Hotel, Inc., a corporation, had leased the signs in question from plaintiff; that on or about March 17, 1957, New Frontier Hotel, Inc., vacated the real property which it was leasing from the defendant, leaving the aforementioned signs thereon; that on or about April 3, 1957, the defendant had agreed to pay to plaintiff the sum of $500 per month until such time as defendant had found a new tenant for its hotel property; but that on or about October 1, 1957, the parties had modified their original agreement by another to the effect 'that plaintiff would receive, and that defendant would pay the sum of $250 per month, plus panel changes until such time as defendant did lease its property to a new tenant.' It further alleged that under such modifying contract it had paid plaintiff the sum of $250 on December 16, 1957 for November, 1957 rentals; $250 on March 6, 1958 for December, 1957 rentals; $250 on April 15, 1958 for January, 1958 rentals; $500 on July 1, 1958 for February and March, 1958 rentals; $500 on July 21, 1958 for April and May, 1958 rentals; and $1,814.50 on January 7, 1959 for rentals for June through December, 1958, inclusive, together with a complete schedule indicating such payment as payment in full on account of all obligations for rentals, plus panel changes, all of which were accepted by plaintiff. This was followed by the allegation that plaintiff by accepting the benefits of such payments should be estopped to deny that they were contrary to the modification agreement, and further that the acceptance of such payments constituted an accord and satisfaction.

Appellant asserts that the affirmative defense does not plead a modification of the original agreement but merely the defenses of estoppel and accord and satisfaction, further that the trial court erred in finding a modification because that issue was not within the pleadings. We do not agree. The defendant's pleading fairly apprised plaintiff of three defenses: estoppel, accord and satisfaction, and modification.

The lower court accorded no virtue or merit to the plea of estoppel or accord and satisfaction, and this court, for the purposes of this appeal, may simply regard the same as surplusage.

We find, then, ignoring the plea of estoppel and of accord and satisfaction, a satisfactory compliance of NRCP, Rule 8(b) requiring a party to state in short and plain terms his defenses to the claim asserted. It seems clear that plaintiff was fully apprised of the nature of the defense pleaded. 1A Barron & Holtzoff, Federal Practice and Procedure, Sec. 277 (Rules ed. 1960); 2 Moore, Federal Practice, Par. 8.20 (2d ed. 1960). The case was tried on such issue. This is the more evident from the transcript of the testimony which shows that only two witnesses testified, one on behalf of each party, and that virtually the sole subject of their testimony was the question whether the modifying agreement had been entered into and, if so, what the terms thereof were and what was the consideration therefor. NRCP, Rule 15(b); Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468; United Tungsten Corp. v. Corporation Service, Inc., 76 Nev. 329, 353 P.2d 452. Appellant's first assignment of error attacking the sufficiency of the pleading of the first affirmative defense is without merit.

(2) We turn, then, to appellant's assignment, which, though differently worded, is to the effect that the evidence is insufficient to support the court's findings, and particularly its findings Nos. 4 and 7. These were as follows:

'4. That the parties did thereafter orally agree to modify the terms of the said agreement by reducing defenant's payments thereunder to $250 per month, plus service charges.

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'7. That defendant paid to plaintiff all sums required to be paid by defendant under the said agreement prior to its modification and after it was modified.'

In its oral opinion from the bench the court stated:

'Now, the defendant's evidence is to the effect that the fayments were reduced from five hundred dollars ($500.00), which included service charges, to the sum of two hundred and fifty dollars ($250.00), plus service charges. I am convinced that this is the situation.'

Appellant frankly contends: 'Upon the proper assessment of the net legal value of Mr. Friedman's testimony [defendant's witness] taken together with the other evidence in the record, this appeal must turn.' Appellant then bitterly attacks the testimony of defendant's witness. Discrepancies and contradictions do indeed appear, but we cannot agree that these rendered the witness's testimony incredible. The trial court did not find it so. His testimony and the testimony of plaintiff's witness Cannon were in direct conflict both as to the times of the conversation referred to and the purport of such conversations. As brief examples of such conflict, Mr. Cannon testified that the only modification agreed to was that defendant might reduce the monthly $500 payments under the original agreement to $250 only for...