Lee v. Haizlip

Kane, J. This was a suit oñ account .commenced by tbe defendant in error, plaintiff below, against the plaintiff in error, defendant below, in the district court of Oklahoma county, to recover the price of certain goods, wares, and merchandise sold and delivered by the plaintiff to the defendant, upon which account at the time the suit was commenced there was alleged to be due and unpaid the sum of $1,036.41. The defendant’s answer contained a general denial, a specific denial as to the correctness of some of the items of the account attached to plaintiff’s petition, and other allegations bjr way of set-off. The allegations upon which the right to a set-off was based *394 were to the effect that the defendant entered into the contract for the purchase of the material mentioned in the petition with one Frank Butts as the agent of the plaintiff, and that, on account of cértain breaches of said contract, the defendant was entitled to damages in an amount, which, with the other credits claimed, would leave a balance due defendant of $52.02, for which he prayed judgment. For reply the plaintiff filed a general denial to all the allegations in defendant’s answer and cross-petition, except such as are therein specifically admitted, a special denial that Frank Butts was ever his agent in any transactions in reference to the contract for the furnishing of lumber or any part thereof, and for further reply alleged, in substance, that he sold the original bill of lumber to Frank Butts and did not know L. F. Lee in said contract, and that on June 17, 1903, he came to Oklahoma City, and found that Butts was selling said lumber to L. F. Lee. L. F. Lee and Frank Butts made complete settlement, whereby plaintiff herein agreed to furnish the balance of said bill of lumber, deliver it to L. F. Lee, and to assume the contract originally entered into between L. F. Lee and Frank Butts and made complete settlement with L. F. Lee, allowing him damages in the sum of $41.76, which said sum was in lieu of all damages accruing by reason of his failure to keep said contract, as originally contemplated, and that it was found on said date that L. F. Lee was owing on said contract the sum of $633.16, and at that time defendant herein paid the plaintiff $500, and that there remained due $133.16, and that plaintiff furnished the balance of said lumber as per the contract, and agreed to ship thereafter to L. F. Lee direct, and that he paid the entire amount of the original contract and the extras as credited to him by the cross-bill of defendant Lee. After the issues were joined, the cause was referred to a referee to make findings of fact and conclusions of law, and report the same to the court. When the cause was called for trial before the referee, counsel for both parties entered into a stipulation, in words and figures as follows: *395 “It is admitted by parties that the plaintiff under the pleadings will be entitled-to a judgment for $879.68, with 7 per cent, interest thereon, from October 25, 1904, unless the defendant herein can establish matters of affirmative defense.” In due time the referee reported his findings of fact and conclusions of law as follows: “First. On June 17, 1905, plaintiff, defendant, and Mr. Butts met together, and agreed in substance as follows: Mr. Butts was to step out of the transaction, and be discharged from all further obligation in the premises. Plaintiff assumed the original contract between Mr. Butts and defendant, and undertook to complete the performance thereof. An account stated was agreed to by and between plaintiff and defendant whereby there was then due plaintiff from defendant, under the terms of said contract, a balance in the sum of $133.16, and it was then and there further agreed by and between plaintiff and defendant that defendant should furnish plaintiff with an itemized statement of the material remaining to be furnished under the terms of the original contract, which said itemized statement defendant did thereafter furnish plaintiff as evidenced by plaintiff’s Exhibit No. 1, and which said statement plaintiff accepted as true and correct. “Second. That the total value of the material contained in plaintiff’s said Exhibit No. 1 at the contract price is $885.46. “Third. That all of said material contained in plaintiff’s said Exhibit No. 1 was furnished by plaintiff, and received and accepted by defendant, and plaintiff is entitled to credit therefor in the said sum of $885.46. “Fourth. That plaintiff’s total credit is $885.46, plus $133.-16, which equals $1,018.62. “Fifth. That defendant is entitled to a total credit of $292.-10 for freight paid on said material contained in plaintiff’s said Exhibit No. 1. “Sixth. That there is due plaintiff from defendant on said account under the terms of said original contract the sum of $726.52. “Seventh. That plaintiff is entitled.to judgment against defendant for the sum of $726.52, with interest thereon at the rate of 7 per cent, per annum from October 21, 1903, to date of judgment and for all costs.” The court approved the report of .the referee, and entered *396 judgment in favor of plaintiff in the sum of $726'.52, with interest at 7 per cent, per annum from the 21st day of October, 1903. Counsel for plaintiff in error complains that the court below permitted the defendant in error to plead one cas.e and prove another; that the plaintiff’s petition declared on an account for goods, wares and merchandise, and that, by agreement of counsel, the amount due the plaintiff on his pleadings was $879.68, unless the defendant established his counterclaim; that the referee permitted, the plaintiff to introduce testimony tending to prove an account stated between the parties, and upon such evidence found that there was due and owing to the plaintiff from the defendant the sum of $133.16, for which amount he gave the plaintiff credit in addition to the amount due on the account rendered which the referee found to be $885.46. Under the pleadings and the agreed statement of facts, the findings that the plaintiff was entitled to a credit of $133.16 on the account stated were unwarranted. There was no allegation in the petition claiming credit for su,ch an item, and the agreed statement hereinbefore set out fixed the liability of the defendant so far as plaintiff’s pleadings were concerned. For the purpose of avoiding the necessitj'i of introducing evidence in support' of the plaintiff’s contention, it was agreed between counsel that the plaintiff under the pleadings would be entitled to a judgment of $879.68 with 7 per cent, interest thereon from October, 1904, unless the defendant herein could establish matter of affirmative defense. Under the circumstances, we think it was error to allow the plaintiff credit for the amount of $133.16 covered by the account stated. The agreement of counsel was binding upon the court and the referee as to the amount due on plaintiff’s pleadings, and that amount, less any credits allowed the defendant as a set-off, should have been the basis of the judgment. The finding in relation to the $133.16, not being within the issues as joined by the pleadings and being contrary to the stipulation of the parties as to the amount due according to the plaintiff’s pleadings, must be set aside. Omitting this credit of $133.- *397 16, the findings of tbe referee are in practical harmony with the stipulation of the parties, and the theory upon which the case was tried, and by giving the defendant credit for $292.10, the amount the referee found he was entitled to for freight paid on material mentioned in plaintiffs Exhibit No. 1, will make the sum for which judgment should have been rendered on the findings of the referee. Under our statute, when a referee is to report the facts, the 'report has the same force and effect as a special verdict of a jury. Shannon v. Petherbridge et al., 17 Okla. 507, 87 Pac. 668. Treating the findings of fact of the referee as a special verdict, the court without difficulty may find therefrom "the amount for which judgment should have been rendered. Under such circumstances, the judgment of the court below will not be reversed, but will be modified, and the district court directed to enter judgment for the amount due. (99 Pac. 1135.) “Where a judgment is rendered by the district court for an amount greater than the sum due, and where the excess can be determined by the Supreme Court, the judgment will not be reversed, but will be modified and the district court directed to enter judgment for the amount due.” (Co. Coms. v. Smith, 18 Okla. 132, 89 Pac. 1121.) .Let the judgment of the court below be modified in conformity with this opinion, the costs to be divided equally between the parties. All the Justices concur.