Lokken v. Miller, 84 N.W. 368

Lokken v. Miller

84 N.W. 368 | N.D. | 1900

Young, J.

The defendant is a co-partnership. In 1898 it operated a line of public elevators in this state. One H. H. Planson had charge of its elevator at Christine, and also of defendant’s business at that point in buying and shipping grain. This action is to recover the sum of $150 and interest, as due and unpaid, for 200 bushels of wheat sold and delivered to defendant by plaintiff in the month of February, 1898, at its elevator at Christine, at an agreed price of 75 cents per bushel, no part of which sum, plaintiff alleges, has been paid. The answer sets up the defense of payment, and that defense only. By this plea the issues of fact for trial were narrowed to the single issue of payment, and as to that the defendant had the burden of showing by competent evidence the, fact that he had discharged the indebtedness, which is admitted by his plea of payment. On the proposition that pleading payment of a liquidated demand confesses the cause of action, and dispenses with the necessity of plaintiff proving his cause of action, and casts the burden of proving the payment so pleaded on the defendant, see Caulfield v. Sanders, 17 Cal. 569. In Mohr v. Barnes, 4 Col. 351, the court said: “The effect of the plea is to admit the original liability, and the burden of its discharge is assumed by the defendant.” See, also, 16 Am. & Eng. Ene. Pll & Prac. 168, and cases cited. The trial in the District Court resulted in a verdict for plaintiff for the amount prayed for in her complaint. Defendant made a motion for a new trial. This was denied, and the appeal is from the order overruling such motion. The motion was based entirely upon alleged errors of law occurring at the trial. All of these alleged errors, some 30 in number, are urged on this appeal as ground for reversing the order of the District Cohrt, Upon the record pre*514sented we find it unnecessary to review any of the errors specified. No evidence was introduced by defendant in support of his plea of payment, and none of the errors complained of relate to the exclusion of evidence upon that issue. Plainly, plaintiff was entitled to a verdict, 'and there was nothing for the jury to determine. Under these circumstances we will not review the numerous rulings of which appellant complains, for, whatever conclusions we might reach as to their correctness, we would be compelled in each instance to hold that no prejudice followed. There is no evidence that defendant, or any one on its behalf, has paid plaintiff for the wheat in money. But it is the contention of appellant’s counsel that the obligation of defendant to pay for the grain purchased was discharged by the execution and delivery to plaintiff of a personal duebill by Hanson for the amount due for the wheat. Hanson was a witness for the defendant. It appears that at the time he purchased this grain in question he was short in his accounts with his employer, and very soon thereafter was discharged. He testified that subsequent to his discharge, and about one month after the sale and delivery of the wheat, he executed and delivered to plaintiff his personal obligation for the amount due her for the wheat, in the form of a duebill. Counsel’s position is that this presented a question of fact for the jury to pass upon under defendant’s allegation of payment. We do not think so. Conceding that Hanson’s statements are entirely true, did the delivery of the duebill have the effect of extinguishing defendant’s admitted obligation to pay for the wheat? We are clear that it did not. It is true, a creditor, by agreement with his debtor, may take the note or obligation of a third person in payment of a debt in lieu of money. But the taking of such obligation is not payment unless so agreed (Waydell v. Luer, 3 Denio, 410); and where the obligation of a third person is taken for a precedent debt, as in the case at bar, prima facie it is no discharge of the original debt (Ford v. Mitchell, 15 Wis. 304, and cases cited). There is no evidence whatever of an agrément between the plaintiff and defendant touching the matter of the duebill. It appears to have been given by Hanson in furtherance of purposes of his own, and not connected in any way with any agreement between the debtor and plaintiff. Under these circumstances the delivery of the duebill by Hanson was the act of a stranger, and his agreement to pay was without consideration, and was without effect upon the existing obligation of the defendant to pay for the wheat purchased from plaintiff. The order overruling the motion for new trial is affirmed.

(84 N. W. Rep. 368.) All concur.