47 Iowa 650 | Iowa | 1878
■ II. The offer to-confess judgment was made under section 2899 of the Code. Appellant claims that no notice was served on plaintiff that this offer would be made, and that he was not personally present when it was made. The bill of exceptions being stricken from the record we have no legitimate means of determining what were the facts respecting this claim. If it should be conceded that plaintiff’s personal presence was necessary, unless he had three days’ notice that the offer would be made, we would be required, in support of the judgment of the court below, in the absence of proper showing to the contrary, to presume such presence or notice. Put even the bill of exceptions does not show that plaintiff was not personally present when the offer was made.
J. D. Irish m acooimt with E. Manning. Dr.
To goods, wares and merchandise, including repairs on
Irish’s wagon; total..........................$264.52
To repairs on Irish’s wagon....................... 11.74
To accrued interest.............................. 114.74
Total charges $373.00
CONTRA.
By cash, work, etc., including 16 days work by boy,
credited at $20.00, making total credits........$137.45
Interest on same................................ 32.08
Total credits.............................$169.53
Credits commence June 15, 1867, and end January 8, 1876.
Balance.................................$203.47
J. D. Irish to E. Manning. Dr.
March 1, 1876. To house rent one year and eleven
months, at the rate of $75.00 per year.......... $143.75
Interest on same................................ 12.08
To damages to rented property................... 50.00
Total............ $205.83
Add balance store account...............'........ 203.47
Total account after allowing credits .■.........$409.30
The defendant, in his answer, claimed of the plaintiff the following sums:
For use of defendant’s wagon from May 1 to November 18, 1867,168 days, at 50 cents per day...... $84.00
For injuries to said wagon by overloading.......... 15.00
For the work of defendant’s boy, credited by plaintiff at $20.00 ......:........................... 32.00
For work on stable, fence, houses, and keeping them in condition generally, in all ,................... 50.00
-For injury to defendant’s premises during the years 1875 and 1876, by plaintiff’s teams, horses, and hired men..........................i....... 150.00
For buggy hire 3 days, at $1.00 per day............ 3.00
For sleigh one day.............................. 1.00
For witness fees in case of Manning v. Fletcher..... 1.25
For account of Hunter & Co., which is defendant’s property.............................. 29.47
We feel satisfied that this position is not correct. It is to be observed that the plaintiff set forth in his petition items both of debit and credit; the presumption is that he claimed all that he considered due himself, and .that he set forth all the credits to which he was willing to admit the defendant was entitled. ITe in effect said to the defendant, “after allowing you all the credits to which you are justly entitled from the 15th of June, 1867, to the 8th of January, 1876, you owe me $4S9.30.” The defendant said, in effect, “ I do not owe you so much. If I were allowed all just credits your claim would be greatly reduced; but I am willing to confess a judgment in your favor for $216.00.”. If this offer had been accepted and a judgment had been rendered for the amount, it would have operated asa settlement of all prior accounts. Neither party could have sued upon any prior item of account without showing that it had been omitted through mistake or fraud. As to the effect of settlement of an account, see Bull v. Harris, 31 Ill., 487; Lee v. Reed, 4 Dana (Ky.), 109; Kennedy v. Williamson, 5 Jones (N. C.), 284; Town v. Wood, 37 Ill., 512; Stiles v. Brown, 1 Gill. (Md.), 350; Hodges v. Hanford. 17 Vt., 615; Martin v. Beckwith, 4 Wis., 219.
The plaintiff did not recover more than the defendant offered to confess a judgment for, and the costs accrued subsequently
Affirmed.