Lane v. Turner

The Court. Defendant and one John Herd, Jr., formed a copartnership for the purpose of farmming a large tract of land; a memorandum of their contract was in writing, dated August 20, 1891, and one of its provisions was that Herd, as his [398]contribution to the expense of ploughing and seeding, the land for the first year, would furnish all seed and feed) “ such feed in no case to exceed the sum of fifteen hundred dollars.” October 3, 1891, Herd assigned his interest in said contract to Lane, the plaintiff, who was a grain dealer at Stockton; such assignment being in terms “ security for feed, grain, and seed furnished to put the land in.” On October 7,1891, Herd wrote to defendant a letter containing this statement: “ I arranged on Saturday last with the Lanes at Stockton to provide you, as per agreement, with the seed and feed you require. Therefore, kindly write them direct and they will forward the same.” Defendant took the letter to plaintiff, who indorsed thereon, “ Accepted: Frank E. Lane.” Upon the order of defendant, plaintiff shipped to him before December 31, 1891, feed to the amount in value of three thousand one hundred and thirty-eight dollars and thirty-eight cents. The purpose of this action is to recover the sum of sixteen hundred and thirty-eight dollars and thirty-eight cents, the excess in value of the feed thus supplied above that which Herd promised to furnish, and the further sum of one hundred and twenty-one dollars, cash advanced for freight on the same. The complaint is in the ordinary form for the value of goods sold arid delivered, and for money paid to the, use of defendant.

In his answer defendant first denied the allegations of the complaint, and then in a separate paragraph— numbered IV—alleged matters which, if true, showed that plaintiff sold the feed and paid the money in question to and for Herd only. He • also pleaded as counterclaims, on information and belief, that in February, 1892, plaintiff succeeded to the interest of Herd in said partnership, and is indebted to defendant on account of certain described transactions of the partnership, and separately, that plaintiff owes him the sum of fifty-two dollars for boarding one Harry Lane at plaintiff’s request. Plaintiff demurred to the answer and to the counterclaims. The court ordered that [399]“ the demurrer to that part of the answer alleging counterclaims, paragraphs 4 and 6, be sustained.”