Haines v. Snedigar
Before: Searls
Synopsis
Action upon Note—Defense—Warranty—Special Agreement—Burden of Proof—Evidence—Nonsuit.—In an action upon a note, where the answer pleaded that it was given in part payment for a harvester, which was warranted to do good work, and that, subsequent to its execution, it was agreed between the parties that the note should remain until the next harvest, and that the harvester should be put in order to do good work, otherwise the note was to be returned and the contract of purchase rescinded, and alleged that the harvester was not put in order, and that the note was demanded by the defendant, which demand was not complied with, etc., the burden of proof is upon the defendant to prove the new matter alleged in the answer, and the contract pleaded in the answer is not admissible in evidence upon cross-examination of the plaintiffs; and it is error to grant a nonsuit because of mere proof of the contract, in the absence of proof either that the next harvest had not arrived, or that the plaintiffs had been given an opportunity to put the machine in order, and had failed to do so.
Id.—Order of Proof—Cross-examination of Plaintiffs—Inadmissible Evidence for Defendant.—The defendant is not entitled to offe^proof of affirmative matter set up in his answer, until plaintiffs have made their case, and submitted it to the court; and proof of the execution of an agreement relied upon in-defense to a note in suit is not proper in cross-examination of the plaintiffs, and its admission in evidence, upon such cross-examination, is error.
Searls, C. This is an action upon a promissory note dated June 10, 1892, made by the defendant, who is respondent here, payable to Houser, Haines & Knight, or order, October 1, 1892, and by them indorsed to plaintiffs. At the trial the court, on motion of defendant, entered a judgment of nonsuit against the plaintiffs, who appeal from the judgment.
The complaint was in the ordinary form upon a promissory note. The answer admitted the making of the note by defendant and its assignment to plaintiffs, and, by way of avoidance, pleaded that the note was given in part payment of a harvester purchased by defendant from the payees of the note, which harvester was warranted by the vendors to do good work, etc.; that thereafter, and on August 6, 1892, a contract in writing was entered into between the parties, by the terms of which it was agreed that the assignors of plaintiff would let the note stand until the next harvest (harvest of 1893), and if the vendors put the harvester in order to do good work defendant would then pay the note, otherwise the [20]note was to be returned to defendant with two hundred dollars for an old machine received from said defendant; that the vendors did not put the harvester in order to do good work; that defendant demanded his note and the two hundred dollars, which demand was not complied with, etc., and that the plaintiffs had notice of all the facts, etc.
The foregoing is only the substance of the answer,, which was pleaded in three separate counts, setting out the written contract, etc. At the trial plaintiff’s counsel called as a witness G. W. Haines, one of the plaintiffs, who presented the promissory note, and said it belonged to plaintiffs, and was signed by defendant; whereupon it was admitted in evidence, and the witness added, "No part of that note has been paid.”
On cross-examination the witness testified that the consideration of the note was a harvester. "This note and an old ‘ Young’ machine, given to us by Mr. Snedigar as part pay, made up the price. I don’t remember what the old machine was rated at; probably three hundred dollars.”
Defendant’s counsel was then permitted, against the objection of plaintiffs, to prove that after the execution of the note a new agreement was entered into between the parties, which agreement was produced, its execution proven, and thereupon it was, against the objection of plaintiffs, admitted in evidence.
The written agreement is as follows:
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