Carter v. Shibles

SvivroxDS, J. In this action of assumpsit, to recover the price-of a car load of corn, the defence was that the judgment in a previous suit by the defendant against the plaintiff to recover an amount due on an account for potatoes sold and delivered to the-latter, in which case the price of tlie corn had been claimed as a credit, was an adjudication against the plaintiff’s present claim. In this former action the writ contained no credit for the corn, and the case having been referred, the award of the referees gave to the present defendant, (then plaintiff,) the whole amount claimed. The record, therefore, showed no allowance of the price of the com as a credit on the account for potatoes. Still, at the trial of this ease, the defendant undertook to prove by oral evidence that before the referees the present plaintiff' claimed such credit; and that this was resisted, not on the ground that the sale of the corn was an independent transaction and the-price of it not to be applied, therefore, in payment of tlie claim then in suit, but on the ground that the car of corn was delivered, under a contract, by which Carter was bound to receive in payment therefor another quantity of potatoes, besides those included in the writ, and that by breach of that contract, on the part of Carter, Shihles sustained pecuniary damage, equalling or exceeding the price of the corn; so that in fact, under the contract for the delivery of corn by tbe one party and of potatoes [276] by the other, nothing was due to Carter for the corn, and therefore no credit was to be given therefor. The defendant claimed ¿the right to show that both parties submitted the matter to the -referees in this way, to determine what the contract was, whether -under it anything was due to the plaintiff for the corn ; and if .■so, to allow the amount due as a credit upon the account then Hinder consideration. The exceptions to the admission of oral evidence in support of this claim of the defendant cannot be sustained. Only the pending action on an account annexed for potatoes ;sold and delivered by Shibles to Carter was within the jurisdiction of the referees, but when a payment on that account was •claimed, and when this alleged payment was resisted on the ground, not that an amount due the then defendant, on account •of a certain business transaction, was not to be applied in pay.ment of the plaintiff’s claim then in suit, but that in that •transaction nothing was due to the defendant, and therefore there ■was no payment to be allowed; and when the two parties agreed ■'in submitting this question to the referees, it was for the referees •to determine whether the payment was proved or not; that is to ,say, whether there was anything due upon the contract, the ••application of which in payment, if due, was conceded. If they •decided that the payment claimed by Carter was for a sum .arising out of a contract on which, when considered as a whole, nothing was due to him, such decision was within the scope of their authority and the refusal by the referees, under such circumstances and upon that ground, to allow the payment claimed was an adjudication barring the plaintiff’s right to recover for the car -load of com. The oral evidence did not contradict or vary the record. It only tended to prove that a particular fact which might legally be in issue under the pleadings was' submitted to the judgment of the referees and determined by the award. The authorities cited by counsel sustain its admissibility. Exceptions overruled. AppletoN, C. J., WaltoN, DaNPORth, YlrgiN and Peters, JJ., concurred.