Skinker v. Clute

9 Nev. 342 | Nev. | 1874

By the Court,

Belknap, J. :

This action was brought to recover $314 30 for goods sold and delivered. The answer admits the receipt of-the goods. It does not deny their value and that no part of it has been paid, but denies all indebtedness, and sets up as counter claim a breach of contract arising out of the transaction sued upon and prays damages therefor in the sum of five hundred dollars. The reasonable construction of this pleading is an admission of the plaintiff’s claim to the extent set forth in the complaint, subject to the defendants’ counter claim. This interpretation was adopted by the district court and is embodied in the following instruction : “The demand of the plaintiff is admitted by the pleadings, and unless the defendants establish their right to their counter claim in the way of damages to your satisfaction your verdict must be for the plaintiff.” An open account between the parties, particularizing their transactions and embracing items of drayage and interest, was received in evidence without ob-' jection. It is now said in behalf of appellants that by thia instruction the jury must have considered that the charges of interest and drayage were confessed by him,, whereas in fact, it is said, he contested these items throughout the trial. The answer to this is that the record fails to show such objection, and it would have been inadmissible under the pleadings, for the allegation of value ' (in which these items were included) not being denied, must be taken as confessed. The complainant prays for interest upon $314 30, from June 6, 1873. It would seem that this interest was not allowed, since the verdict is for $312 93. In the case of Flannery v. Anderson, 4 Nev. 437, it was decided under Sec. 32 (Comp. Laws) that in the absence of an express contract thereto in writing, interest was not recoverable upon money due upon an open account. The same Statute declares that interest shall be allowed upon money due on the settlement of accounts from the day on which the balance is ascertained.

In our view of this case the account was liquidated and the balance ascertained by the admissions of the answer, and interest upon the balance was, therefore, allowable.

The judgment and order refusing a new trial are affirmed.