3 Nev. 498 | Nev. | 1867
Opinion by
concurring.
The plaintiff brings this action to recover the sum of forty-two hundred and fifty-eight dollars, the value of a quantity of wood delivered to the defendant Uznay under the following contracts:
“ This agreement, made and entered into this twenty-sixth day of January, a.d. 1864, betAveen E. B. Horton of the first part, and Charles Uznay, party of the second part, witnesseth: That for and in consideration of one dollar paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged and the premises hereinafter stated, the party of the first part agrees to furnish to the Phoenix Mills all the Avood needed for both mills,*502 i.e., number one and number two, on the following terms, namely: Until the first day of May, 1864,' at fourteen ($14) dollars per cord for wood without bark, and fifteen ($15) for Avood Avith bark in a dry state ; and from the first of May, 1864, until the first day of November at thirteen ($13) dollars per cord for wood without bark, and fourteen ($14) dollars per cord for wood with bark, but in a dry state, and to keep constantly on hand at the said mills not less than fifty ($50) cords at any one time. And the party of the second part agrees to pay for all the wood used at the above mills at the rates above specified, on the first and fifteenth day of each month for each and every cord consumed. And it is further agreed between the parties that should coal be offered for sale in the market, and should the party of the second part conclude to use coal instead of wood at the mills aforesaid, the party of the second part shall for such cause have the option of canceling this contract; but should the supply of coal be limited, and the mills be obliged to use wood to any extent, then the party of the first part agrees to furnish all the wood needed at both mills, as hereinbefore specified. Should said E. B. Horton fail to carry out this contract, he agrees to pay damages for his failure, liquidated and agreed on between both parties to this contract at one hundred ($100) dollars per day for each and every day that the mills are stopped on account of not being supplied as per this agreement.
“E. B. Horton,
“ Chas. Uznay.
“ Witness: H. V. S. McCullough.”
“ Virginia City, January 26,1864.
“ For and in consideration of one dollar to us in hand paid, and the foregoing premises, Ave hereby agree to pay the amount to be paid by the party of the second part to the foregoing agreement, should the said party fail to pay in accordance Aiith the agreements and terms of the foregoing contract.
“E. Ruhling & Co.”
It will be seen that Uznay agrees to take and pay for all the wood used and consumed at the íavo mills mentioned in the contract on the first and fifteenth of each month, and Ruhling & Co. guaranty the payment by him as stipulated in the agreement. Under this
The plaintiff seems to have labored under the impression that the guarantors were responsible for the price of all the wood which he might choose to deliver to Uznay, and upon that assumption founds this action. In this he was in error. We conclude therefore with the Court below, that the complaint does not state facts sufficient to constitute a cause of action, and hence could not support a judgment in favor of the plaintiff. This being the case, the Court
New matter which is simply an avoidance of the cause of action made out by the plaintiff should always be specially pleaded. Such
“ On the third day of May, 1864, the plaintiff, at the request of the defendants Ruhling & Co., agreed that they should be discharged from further liability upon said guaranty, in consideration that they would pay him the amount unpaid and due him from Uznay for wood furnished by the plaintiff to Uznay under their said contract of sale and purchase, as well as three hundred and seventy-eight dollars, the price of the wood so furnished on the first, second and third of May, 1864, but not then due, all of which*506 amounted to about $4,100, which amount was so paid to the plaintiff by Ruhling & Co., pursuant to such agreement.
“ No wood was furnished by the plaintiff or used at the Phoenix Mills after the third day of May, 1864, upon the credit of the said Ruhling & Co. The plaintiff has been fully paid for all wood fur-. nished by him and used at the Phoenix Mills prior to June 11th, a.d. 1864.”
Without proof of the agreement by which the guarantors claim to have been released, we are satisfied that a judgment dismissing the action and for costs was all that could have been rendered against the plaintiff. Such a judgment would not prejudice his right to bring another action, but the judgment rendered by the Court, and which we have shown was founded upon testimony improperly admitted, could possibly be used against him as a complete bar to any future action to recover the sum of money claimed in this action. He was therefore prejudiced by the proof of the agreement to discharge the guarantors, and the findings and judgment thereon.
Por these reasons we are compelled to direct a modification of the judgment, so that it shall be simply a dismissal at the plaintiff’s costs, without prejudice to another action.