Valley Lumber Co. v. Wood

VANCLIEF, C. Action to recover $586.39 for goods sold and delivered. The complaint is in two counts—the first for $503.19 for goods sold and delivered by plaintiff; and the second for $83.20 on account of goods sold and delivered to defendant by Prescott & Pierce, copartners, assigned to plaintiff. The defendant made no denial of the first count, but denied that he was indebted to Prescott & Pierce in any sum exceeding $81.20; and further denied the alleged assignment by Prescott & Pierce to plaintiff. In addition to these denials, the defendant alleged, in substance, the following affirmative matters: (1) A counterclaim of $1,710 to the first count, for 171,000 bricks alleged to have been sold and delivered by defendant to the plaintiff in May, 1889, no part of which has been paid. (2) A counterclaim to the second count for 171,-000 bricks, of the value of $1,710, alleged to have been sold and delivered by defendant to Prescott & Pierce in May, 1889, no part of which has been paid. (3) “And for a third and separate answer and defense to both alleged causes of action, and by way of counterclaim and cross-complaint, defendant alleges” that in May, 1889, he sold and delivered to Prescott & Pierce 171,000 bricks, of the value of $1,710; and that in making the purchase of said bricks Prescott & Pierce were acting as agents of plaintiff, and made the purchase for the benefit of plaintiff, as defendant has since been informed and believes, though he had no knowledge of such agency at the time of the transaction. He therefore avers that Prescott & Pierce are necessary parties to the action, and prays for judgment against the plaintiff for $1,710 and such further relief, etc. (4) “For a further and separate answer and defense, and by way of counterclaim and for a cross-complaint herein, defendant alleges” that in May, 1889, he sold, delivered, and furnished to Prescott & Pierce 171,000 bricks, of the value of $1,710, at their instance and request; and further avers that he is informed and believes the plaintiff was jointly interested in the transaction by which said bricks were sold as aforesaid, and interested in the profits of such transaction, if any there were; but at the time of the transaction defendant did not know that plaintiff was interested with Prescott & Pierce in the purchase; “wherefore defendant prays that said Prescott & Pierce be made parties hereto, and be duly cited to appear and to answer the cross-[3]complaint herein”; and further prays for a joint judgment against Prescott & Pierce and the plaintiff for the sum of $1,710 and costs, and such further relief, etc. There was no demurrer to any of these answers, and no motion to strike out, nor to require defendant to elect upon which of the inconsistent answers he would rely at the trial. The plaintiff answered the so-called “cross-complaints” by denying all the allegations thereof. All the pleadings were verified. The cause was tried by a. jury, whose verdict was in favor of the defendant for the sum of $1,123.61, upon which judgment was rendered against the plaintiff. The plaintiff appeals from the judgment and from an order denying its motion for a new trial.