Anderson Mercantile Co. v. Anderson

Bruce, J. (after stating the facts as above). The answer of the defendant in this case is, to all intents and purposes, a general denial. What was said therein in regard to the account stated was surplusage, and that it was not necessary that it should have been pleaded. Under the general denial of the Code, the defendant may show that the contract between him and the plaintiff was a different one than that set out in the complaint, or that no contract at all was in fact made. 1 Enc. Pl. & Pr. p. 818; Starratt v. Mullen, 148 Mass. 570, 2 L.R.A. 697, 20 N. E. 178. See discussion in Vallancey v. Hunt, 20 N. D. 579, 34 L.R.A. (N.S.) 473, 129 N. W. 455-459. The defense in this case was not a defense of payment or set-off or counterclaim, but merely that the defendants never agreed to pay for the goods at all, and that they took them in payment of an account stated and of a credit due and owing to them from the plaintiff. This was merely showing that the actual contract between the parties was a different one than that set forth in the complaint, and, as they asked for no affirmative relief, it was nothing more than a general denial. Whatever may be said as to the authority of the agent, Strand, to state the account and allow this credit, the jury, by their verdict, found that it was stated, and that it was unconditional if unauthorized, the plaintiff corporation should have repudiated it and demanded a return of the goods and if they were not returned they could have sued for their value. There is, in this case, no evidence of such repudiation. The agreement of the agent, Strand, was essentially a trade agreement, and the account contained many things besides the allowance of dividends. There was a give and take on both sides. The burden of proof was therefore upon the plaintiff to prove his cause of action; that is to'say, to prove that the defendant agreed to pay for the goods at all. It is true that there is in the answer a claim for $8.50 for a trunk, which is separate from the account stated, and which, if pleaded affirmatively, might be looked upon as a set-off. But no affirmative judgment is asked, and both parties agree that the amount claimed was due and owing. The question of the burden of proof on this item, therefore, is immaterial. These considerations not only dispose of the alleged errors in regard to the admission of evidence and the remarks and instructions of the court in regard to the burden of proof, but the assignments for the alleged errors in allowing the cross-examination to extend beyond the [445] limits of tbe examination in chief. The examination in chief was for the purpose of showing an agreement on the part of the defendants to pay for the goods in controversy. The burden was upon the plaintiff to prove the contract of sale and purchase, and the examination in chief was for the purpose of meeting this requirement. Anything that would ■disprove the agreement was proper cross-examination, and it was for this purpose only that the examination was extended. So, too, the errors of the court in striking out portions of the answers, if errors they were, can hardly be looked upon as grounds for reversal. They were chiefly to be found-in connection with questions as to the authority of the manager to declare dividends, and under our theory of the case such evidence was immaterial. Even if it could be considered material, the errors could easily have been cured by cross-examination, as the principal reasons given for the exclusion of the portions of the answer were that they were not responsive to the questions. The judgment of the District Court is affirmed.