100 N.W. 847 | N.D. | 1904
Plaintiff sued to recover a 'balance which he claimed to be due him for threshing defendant’s crops in 1901. In his complaint plaintiff alleged that he made a contract with and was employed by defendant to thresh defendant’s crops for 1901; that he threshed the crops pursuant to the contract; and that there was a balance due him and unpaid upon said contract of $365.37, for which he asks judgment. The answer is a general denial. A verdict was returned for defendant. A motion for new trial was denied, and this appeal is from the order denying a new trial.
There is some conflict in the evidence, but the following facts are established without contradiction: In July, 1901, A. L. Nelson represented to defendant that he had purchased a threshing rig for use during the fall. Defendant had a large crop, and he was desirous of securing the job of threshing it because of the economies of operation upon defendant’s farm and for the prestige it would give him in securing contracts from neighboring farmers. Nelson was insolvent, and without credit. He owed defendant for the amount of a note upon which defendant had become his surety and subsequently paid, and defendant was at that time surety for him upon another note then past due. After some negotiation, a contract was made by which Nelson agreed to thresh defendant’s grain with his machine at a stipulated price per bushel, the gross amount to be discounted $100, and defendant claimed (but this is denied by Nelson) that the amount Nelson owed him and the amount of the note upon which he was surety, and which he was to pay, should also be paid by this threshing deal. Subsequently, and in the months of September and October, Nelson came upon defendant’s farm with a threshing rig, which he claimed to own, and threshed defendant’s crops. On or about the 8th of November, and after the threshing was completed, Nelson requested defendant to pay what was coming under the contract to the plaintiff, Hogen. Defendant paid $220.40, claiming this to be the balance due for the threshing after deducting the $100 discount, a freight bill upon the rig, advanced by defendant, and the notes he had taken up for Nelson. Hogen then for the first time asserted that the threshing machine belonged to him, and not to Nelson; that Nelson was his hired man or agent, and aH that Nelson had done in making the contract and performing it was for plaintiff’s benefit; and he demanded payment of the full amount the threshing came to without any deductions excepting the freight bill upon the separator.
Several assignments of error are predicated upon rulings of the court admitting evidence upon the cross-examination of plaintiffs witness, Nelson, identifying notes which defendant had signed and subsequently paid for him, and questions as to whether, under his contract with defendant, these notes were to be paid in threshing. Nelson was the witness upon whose testimony plaintiff relied to prove the contract upon which his right of recovery, if any, was based. Defendant was entitled to have all the terms of the contract proven, and to call the attention of the witness, by cross-examination, to any terms of it he had inadvertently or designedly omitted in his examination in chief. 3 Enc. Ev. 835, and notes; 8 Enc. Pl. & Pr. 105, and note; Duttera v. Babylon (Md.) 35 Atl. 64; Wilson v. Wagar, 26 Mich. 452. Defendant claimed that it was a stipulation
Several rulings of the court are assigned for error in permitting defendant to testify concerning the terms of the contract^under which his threshing was done and identifying the Nelson notes, which were paid in threshing under this contract. Appellant insists that this was new matter, constituting a defense or counterclaim, and that evidence of it could not be received under a general denial. This evidence was directly contradictory of the'material averments of the complaint, and was consequently competent. The fact that it would tend to prove a counterclaim, had one been pleaded, does not effect its competency for the purpose indicated. We do not think, however, that this evidence was of “new matter constituting a defense or counterclaim,” within the meaning of subdivision 2, section 5273, Rev. Codes 1899. New matter means matter extrinsic to the matters set up in the complaint as a basis of the cause of action; a defense which concedes that a cause of action once existed, but has been determined by some subsequent transaction. Manning v. Winter, 7 Hun. 482; 1 Enc. Pl. & Pr. 830; Greenway v. Jones, 34 Mo. 328; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Churchill
Appellant complains that he was required to testify in cross-examination that Nelson was insolvent, and his credit was not good for $75. It appeared in the case that Nelson; about two weeks after contracting to do defendant’s threshing, attempted to borrow from him $75 to pay freight .upon the machine 'he claimed to have purchased through plaintiff, the amount to be repaid in threshing. Defendant was assured by plaintiff that Nelson could not get the machine unless the freight was paid. Defendant indorsed a note for Nelson in the Bank of Hatton for the amount of this freight money, and notified plaintiff he could get the money when Nelson’s machine arrived. Plaintiff got the money, and defendant subsequently paid this note. Plaintiff testified upon direct examination
Other assignments relate to objections to evidence where the grounds of objection were not sufficiently stated, or to‘ motions to strike out evidence where the grounds of objection were apparent
The verdict returned is in accord with and justified by the evidence. The order denying a new trial is affirmed.