| S.D. | Jan 3, 1896
For a cause of action, plaintiff claims to have delivered a span of horses to the defendant, under a contract that the team would be placed in a car with certain other horses, and be shipped to Vermont for the purpose of sale; that the defendant agreed to pay plaintiff the entire amount for which the horses might be sold, less the expense of shipping, which proved to be $35.54; that, although the horses sold in Vermont for $250, defendant has paid but $67.66, including the expense of shipment, and there is still due and unpaid $182.44, for which he demands judgment. Defendant admitted that the horses were shipped at an expense of $35.54, and sold for $250, and, as a defense, states that it was mutually agreed between the plaintiff and himself that the horses were to be sold at the best obtainable price, pursuant to the direction of plaintiff, and that all the expenses of shipping, keeping, feeding, and caring for said horses until sold should be deducted from the price obtained, and that the balance‘thereof should be paid over to plaintiff; that $135.54 was the actual amount which defendant was required and compelled to pay for shipping, keeping, feeding, and caring for said horses before they were sold; and that, before the commencement of this action, he paid to plaintiff $114.46, which was the full amount due after deducting from the selling price the expense which plaintiff agreed to and was liable to pay under the contract. The case was tried to a jury, and upon a verdict for $198.86 against the defendant, and in favor of plaintiff, the court entered a judgment; and the defend
Owing, apparently, to the dullness of the market, the horses were not sold promptly; and a Mr. Chase, who went through with the car, for the purpose of caring for, and assisting in the sale of, the horses, returned after remaining in Vermont about four weeks, and respondent’s horses were left and kept in a livery and feed stable five months, before a satisfactory purchaser appears to have been found, at an expense of $20 per month, which appears to have been deducted in the Bast from the $250 received for the team. Prom evidence admitted on the part of appellant, and afterwards by the court stricken from the record, and withdrawn from the jury, it fairly appears that respondent, after the horses were shipped, and before they were sold, applied for, and received from or through appellant, $75, under an arrangement that the same was to be retained out of the money when received from the sale of the horses. In any event, a note for $80 made by respondent, payable to and endorsed by appellant, was delivered to a third person, from whom appellant received $75, which was turned, over to respondent. Appellant testified, in effect, that this money was obtained and advanced on account of the sale of the horses, and that afterwards, at respondent’s special instance and request, he actually paid the amount of 'the note and accrued interest to the holder thereof, and had deducted the same from the amount for which the horses were sold.
Concerning the note which was produced by appellant and offered for identification, respondent was permitted, on cross-examination, to testify that he executed the same; but an objection being interposed by counsel, and sustained by the court, appellant’s counsel proceeded no further with the witness upon that line. The theory upon which the court declined to permit appellant to attempt to show that pursuant to respondent’s request and direction, and in accordance with the arrangements between the parties, he had paid a portion of the amount re
We are therefore of the opinion that, in the present case, evidence tending to show that appellant, who had money in his hands belonging to respondent, had actually paid a portion thereof, at the instance and request of the latter, in settlement of a debt evidenced by a note which respondent owed to a third party, was admissible; and all the material facts and circumstances connected with the transaction should have been admitted, and submitted to the jury, under proper instructions as to what facts were necessary, as a matter of law, to constitute payment; or if, in contemplation of a sale of the- horses which had been placed at his disposal for that purpose, appellant had actually paid money to respondent, which had been procured by the execution of the note in question, and delivered to and been received by appellant as an advance partial payment of the amount for which the suit was brought, with the understanding at the time that appellant should pay the note out of the money for which the horses might sell, evidence that the note had been thus paid in accordance with such agreement was competent under the answer. “Payment may be made by an arrangement whereby a credit is given or funds supplied by. a third party to the creditor, at the instance of the debtor. But such an arrangement must be carried into actual effect, to have all the force of payment.” 2 Pars. Cont. (6 Ed.) 625. In speaking of a transaction in principal similar to the present. Chief Justice Lake, in Hughes v. Kellogg, 3 Neb., at page 195 says: “In my opinion, this arrangement amounted substantially to what is termed ‘payment by delegation,’ as where a debtor directs his banker to place to the credit of his creditor, with his assent, a sum of money to be applied in payment of
Other assignments of error, relating to the court’s charge to the jury, and to the denial of appellant’s application to amend his answer to conform to the view of the court, need not be noticed. The judgment is reversed, and anew trial ordered.