Foster v. Carr

SMITH, C.

The defendant appeals from a judgment in favor of the plaintiff for the sum of $773.42 and from an order denying his motion for a new trial.

- The ease as presented by the record is as follows: The plaintiff and defendant were engaged in the business of dairying, under a written contract of date October 24, 1894, by the terms of which the defendant was to furnish four hundred cows and heifers, and also the lands required, and the defendant was to carry on the business, the expenses, with certain exceptions' specified, to be borne by the latter. The term provided for was three years from November 1, 1894; but on August 28, 1896, the contract was terminated by agreement, and the property mentioned therein and certain joint property of the parties was turned over to the defendant, “for which [it is alleged in the complaint] he agreed to account.” It is also alleged, in effect, that before and after the termination of the contract the defendant received moneys and other property of the firm, for which he refused to account, and that on a just accounting there would be due to the plaintiff the sum of $1,067.99, for which, and for an accounting, judgment is prayed. The allegations of the complaint, except as to the contract and its termination, are denied by the answer; and it is in effect alleged that there is a balance of $172 due to the defendant.

On the trial, which was before a jury, the plaintiff offered in evidence a written agreement of date August 25, 1896, providing for the termination of the contract, and for the assessment, by three arbitrators, therein named, of the value of the property owned jointly by the parties, and of the damages sustained by the plaintiff by reason of the termination of the contract, and for the payment by the defendant of half the values assessed, which was objected to by the defendant on the

[85]

ground that it was “incompetent, immaterial, and irrelevant.” There was also offered the award made in pursuance of this agreement, which was objected to on the same grounds, and on the further grounds “that it was not admissible for any purpose under the issues raised by the pleadings, and . . . that it was not a valid award.” But both documents were admitted, the defendant excepting.

There was no dispute as to the receipt by the defendant of the various articles enumerated in the award, and, as to many of them, the values assessed were stipulated to be correct. The only dispute was as to the values of the unadmitted items. With reference to these, other evidence of value was introduced by the parties, and special issues were submitted to the jury, on which a verdict was rendered. In some of the values found, the verdict agreed with the award; in others, it disagreed.