Sedgwick v. Evans

25 Mo. App. 388 | Mo. Ct. App. | 1887

Ellison, J.

The plaintiffs, in their petition, charge that they are partneis dealing in railroad ties, and on the twenty-ninth day of April, 1881, through their agent, drew a draft on George W. Sedgwick for two hundred dollars, which was duly honored and paid; that the consideration for the draft was a contract on the part of the defendant to deliver plaintiffs ties for the same; that defendant has failed and refused to deliver the ties, although a reasonable time has elapsed, and plaintiffs ask judgment for the two hundred dollars, with six per cent, interest. The defendant answered, admitting the partnership, and that plaintiffs were dealers in ties, as charged, and also the making and payment of the draft, but denied that the draft was given in pursuance of a contract, as stated in the petition. Further answering, defendant alleged that, ‘ ‘ long prior to the payment and drawing of said draft this defendant had furnished to said plaintiffs and agents of said plaintiffs, and delivered to them ties, under a contract made with plaintiffs through said agents, amounting in value to $538.18; that, as total pay for said ties so delivered, he had re-' ceived, including the draft sued on, the sum of $405.28; that the difference between $538.18, the agreed value of ties so delivered, and $405.28, is $132.90, being the balance due this defendant, and for which he asks judgment and costs.”

The plaintiffs replied to the foregoing answer, denying, first, the new matter therein stated, and then set out that plaintiffs did receive from Benson & Evans, a firm composed of John E. Benson and defendant, at divers times in, 1880 and 1881, twenty-four hundred and twelve ties (2,412) of the first-class at a value of thirty-one and one-half cents each, and two hundred and forty ties (240) of the value of sixteen cents each, making a total sum of $798.18; that, during the time said ties were being delivered, there was paid to said Benson & Evans $769.18, leaving a balance due said partnership of Benson & Evans of twenty-nine dollars. Plaintiffs also denied that defendant delivered to them any ties on his individual account, or in payment or satisfaction of the draft sued on. Plaintiffs also averred their willingness to settle and adjust any accounts between them and Benson & Evans, but denied that the ties delivered to them by said firm of Benson & Evans were set-offs in this action. All that portion of the replication, except the general denial of the new matter set up in the answer, was said by defendant to have been stricken out. Plaintiffs deny this. There is no order of court striking it out, but the replication appears in the record as follows : “ Plaintiffs, for their replication to the answer of defendant, say that they deny each and every allegation in said answer setting up new matter.” Then follows the new matter set up in the replication, across which new matter, from opposite corners thereof, were drawn diagonal lines, crossing in the center. It does not appear how, nor when, these lines were put upon the paper upon which the replication was written, whether before it was written or afterwards, nor does it appear with what intention they were placed there. We need not pass on this point of dispute between the parties, as we regard the general denial of the new matter in the answer as sufficient to cover the ground contended for by plaintiffs in the progress of the trial. . The answer admitted plaintiffs’ partnership, the making of the draft, and that plaintiffs were dealers in ties, but denied that the draft was given as advance payment to defendant for ties he was thereafter to deliver. It then proceeds to allege that the draft was given in payment of ties theretofore furnished plaintiffs. The answer then alleged an over payment on such delivery of $132.90, and asked judgment against plaintiffs for that sum. To this new matter the replication contained a general denial, omitting that portion alleged to have been stricken out. That is, the replication denied that the draft was given to defendant in payment for ties which Tie had theretofore delivered. On the trial, plaintiffs offered evidence, consisting of defendant’s letters and of oral testimony, tending to show that the dealings he had concerning ties gotten out before making the draft, was with a firm of Benson & Evans (Evans being the defendant herein). This evidence the court rejected and the question is, was it admissible under the general denial contained in the replication? We think it was. The petition stated a cause of action based on a draft given as advance payment for ties to be furnished by defendant individually; the answer admitted the payment, but alleged a tie deal between defendant individually and plaintiffs, prior to giving the draft, and that the draft was payment on that deal, etc. This the replication denied. Defendant gave evidence tending to support his answer, and plaintiffs, on cross-examination of defendant’s witnesses and by evidence in rebuttal, undertook to show such dealings was a separate affair and was with the firm of Benson & Evans. If this was the fact, defendant’s answer was not. If this was true the indebtedness of defendant to plaintiffs could not be affected by the claim of the firm of Benson & Evans against plaintiffs. We are of the opinion the evidence offered by plaintiffs should have been admitted and that their refused instructions should have been given.

The judgment is reversed and the causéis remanded.

All concur.