Salle v. Mayer

Vanclief, C. This action is of the nature of a common-law action of assumpsit. The complaint contains three counts: 1. For goods sold and delivered; 2. For money paid for the use of the defendant; and 3. For labor performed by plaintiff for the defendant.

As to the first count, defendant’s answer admits the sale of the goods, but pleads payment. As to the second, the answer merely denies that the defendant “ is indebted to plaintiff in the sum ” demanded, or in any other sum. As to the third count, the answer simply denies that plaintiff performed the alleged labor or any labor for defendant “at his instance and request.”

The answer alleged counterclaims against the plaintiff for money paid for plaintiff’s use; for money loaned; for personal property of defendant converted by plaintiff to his own use; and for pasturing plaintiff’s cow.

The balance of plaintiff’s demand, after crediting [167]defendant with payment of $129.39, is $873; and the amount of defendant’s counterclaims is $673.

The case was tried by a jury, whose verdict was for plaintiff in the sum of five hundred dollars, upon which judgment was rendered. The appeal is from the judgment, and from an order denying defendant’s motion for a new trial.

1. The point that the evidence was insufficient to justify the verdict is not sustained; for although the evidence is conflicting, that on the part of the plaintiff sufficiently tends to prove that a balance of five hundred dollars was due from defendant to plaintiff, to justify the verdict.

2. It appears that plaintiff, with his family, was residing on defendant’s land—a tract of 115 acres—from December, 1887, until February, 1889, during which period the alleged indebtedness of defendant to plaintiff accrued. The plaintiff testified that he was induced to go on the land by a verbal promise of defendant that he would execute to plaintiff a lease of the land for a term of five years; that after his removal the defendant refused to execute the lease, but told plaintiff to go on and cultivate the land, and that he (defendant) would pay for the work. Defendant’s counsel moved the court to strike out “ all the testimony in regard to the contract for the lease, .... on the ground that the lease was for inore than a year, and not in writing.” It is insisted that the denial of this motion was error. But the testimony was not intended to prove a lease, but only to explain how plaintiff was induced to remove his family upon defendant’s land. Plaintiff claimed nothing under the lease which he said had been promised by defendant, but distinctly testified that it was never executed. The testimony, therefore, was not objectionable on the ground stated.