78 Ind. App. 396 | Ind. Ct. App. | 1922
— Appellant filed a complaint against appellee in three paragraphs. By the first she seeks to recover damages for an alleged breach of contract, and by the second and third she seeks to recover the value
Appellant contends that the court erred in giving instructions numbered 1 and 10. Instruction No. 1 is as follows: “In the second paragraph of the defendant’s answer it is alleged that the plaintiff and defendant met for the purpose of determining the amount due and owing by defendant to the plaintiff and that the defendant gave and the plaintiff accepted a check for $530.36 marked, Tn Full,’ and that the plaintiff thereafter cashed and obtained the money upon said check and still retains the same. To this answer the plaintiff files a verified general denial and this constitutes an issue for your determination. If you find that the defendant did give to the plaintiff under the circumstances alleged a check marked, Tn Full,’ and that the plaintiff accepted the same and obtained the money upon it and still retains the same, then your verdict must be for the defendant.”
Instruction No. 10 applies to both paragraphs of answer based on accord and satisfaction, and while differing somewhat in the language used, is of the same general import as instruction No. 1. Where a party relies upon the defense of accord and satisfaction he must establish by a preponderance of the evidence, not only that the alleged agreement and payment
Appellee, in an effort to avoid the effect of the conclusion we have reached, contends that in determining whether the court committed reversible error in giving said instruction No. 1, instructions Nos. 11 and 12 should be read and considered in connection
Appellee, in further support of his contention that the court did not err in giving said instruction No. 1, asserts that it was a correct instruction under the issues, since appellant did not file a reply, confessing and avoiding his answers of accord and satisfaction, but only controverted the same by a general denial. He contends that the undisputed evidence shows that appellant accepted from appellee a check marked “In Full,” and, in the absence of an affirmative reply, alleging facts which would avoid the effect of her act in so doing, she is bound thereby, and hence the instruction in question was a proper one under the issues. This contention cannot be sustained. In order for appellee’s answers of accord and satisfaction to constitute a defense, it was necessary that they contain an express or implied averment, that the items of indebtedness in suit were included in the new agreement involved in such defense. Therefore, under a reply in
Moreover, it is well settled that a plaintiff under a reply of general denial is not confined to negative proof in denial of the facts stated in the answer, but may introduce proof of facts independent of those alleged in the answer, which are inconsistent therewith, and tend to meet and break down his defense. Balue v. Sear (1891), 131 Ind. 301, 28 N. E. 707.
For the reasons stated, the court erred in giving said instructions Nos. 1 and 10. Errors involving the evidence are not considered, as it may be different in some essential particular on another trial. The judgment is reversed with instructions to sustain appellant’s motion for a new trial and for further proceedings consistent with this opinion.