Sherman v. Stewart
Sherman v. Stewart
Opinion of the Court
Stewart Company, a corporation, as plaintiff below, by its declaration herein, claimed that Sherman, the appellant, was indebted to it in the sum of $833.21. It was alleged this indebtedness consisted of two accounts — one, called the store account, was for merchandise sold and delivered Sherman in the amount of $116.39, and the other, called the garage account, consisted of work done upon.and parts furnished for motor vehicles operated
Sherman answered. He denies he was indebted to Stewart. He listed the charged items which he said were incorrect and were not owing by him, supporting his denial by proper affidavit. He also said he had sold and delivered to Stewart lumber aggregating $301.95, for which Stewart had agreed, but had failed, to give him credit on his account. The denied items, plus the price of the lumber, amounted to more than the claim of plaintiff.
In addition to this, Sherman asserted that a dispute existed as to the correctness of the account and the amount, if any, he owed Stewart; thát this was a matter of disagreement and discussion between them, and that it was agreed that he, Sherman, would pay the sum of $200.00 in full settlement of his indebtedness to Stewart and that on October 27, 1951, he did pay that sum in full accord and satisfaction of the debt.
Stewart denied Sherman had sold it any lumber, and denied any settlement was had between them.
That was the state of the issues when the case came on for trial. At this stage plaintiff made a motion to strike defendant’s list of denied items and the supporting affidavit. The court sustained that motion. Appellant says that was reversible error. The trial was limited by the instructions to the issue of accord and satisfaction. Yerdict and judgment were entered for Stewart for $833.21, the full amount for which suit was brought.
We do not know the reason prompting the action of the trial judge as above shown. Denial of certain charged items and of the entire claimed indebtedness and accord and satisfaction could be pleaded together. Section 1477, Code 1942, permitted the following pleas to be filed together: “The general issue, denial of debt or contract sued on, tender in whole or in part, statute of limitations,
Said Chapter 230 also provides that if matter which heretofore could constitute a plea be set up in such a manner as to be “clearly distinct and readily separable and go to the entire cause of action,” it may be separately heard and disposed of before the principal trial of the cause, in the discretion of the court. But that was not the action taken by the court. The adopted procedure did not leave to be tried the issue whether the itemized denied items were owing by the defendant. The court struck that defense from the case. The issue of accord and satisfaction was decided against Sherman. He then had the right to have the other issues raised by his pleas passed upon. Section 1, said Chapter 230, provides, “And if the defendant fail to sustain the matter of the plea so heard, upon which matter, after motion made, he shall have the burden both as to the law and the facts, he shall nevertheless then have the right to go on to trial upon his answer as a whole.”
Also, defendant was denied the right to produce evidence to sustain his denial that plaintiff had sold and delivered him the various items appearing in the item
Reversed and remanded.
Reference
- Status
- Published