Pennings v. Giboni

Mr. Justice Benson delivered the opinion of the court. There is a large number of assignments of error but the greater number of them involves but one question which may be fairly stated thus: Does plaintiff’s affirmative defense, as set out in the reply, involve admissions which defeat the causes of action as set out in the complaint? Defendant urges that the allega — 115 — tions in the reply are pregnant with admissions that the ehoses in action upon which the complaint is based were either not assigned to the plaintiff prior to the alleged settlement of March 20th, or that she had constituted A. J. Pennings her agent for the purposes of such settlement and that in either event she has pleaded herself out of court. We cannot agree with this interpretation of the pleadings which should always be read together and as a whole. In effect the plaintiff says: “These debts were assigned to me on January 2, 1913, and on February 15, 1913, I notified the defendant of my ownership and demanded payment.” • The defendant answers: “I deny the assignment, and deny any notice thereof. I paid these claims to plaintiff’s husband A. J. Pennings, on March 20, 1913. At that time we had a settlement of our accounts as a result of which A. 'J. Pennings admitted that he was indebted to me in certain sums sufficient to absorb the $500 in controversy, and authorized me to apply the money in my possession to the payment of such debts which I did.” The clear effect of plaintiff’s reply read in the light of the complaint, is: “It is true that the claims sued upon were assigned to me before March 20, and that I notified the defendant thereof,- but, if the jury should happen to discredit my evidence upon that issue, nevertheless, defendant’s plea of settlement ought not to prevail, because the instrument upon which he relies to support that defense was based upon a parol agreement upon his part to perform certain acts which he has failed to perform and A. J. Pennings has rescinded the contract.” 1. These allegations are not inconsistent with the complaint and do not contain the admissions for which defendant contends. If it were otherwise, and by fair — 116 — implication such admissions could be read into the reply, the result must be the same, for it is far from clear that any such inference was intended by the pleader. In Soule v. Weatherby, 39 Utah, 580 (118 Pac. 833, Ann. Cas. 1913E, 75), the court says: “As a matter of evidence, an inference may have but slight force or effect. It may only be more or less persuasive and entirely inconclusive, and still it may be considered, since it is evidentiary merely. In pleadings, however, the inference, to be availing must stand as and for an ultimate fact, and therefore must be clear and certain.” Defendant further insists that the affirmative matter in the reply discloses that the causes of action declared upon in the complaint have been discharged by a subsequent and independent contract, and that if plaintiff has any remedy it lies in an action for the breach of the later agreement. This contention is based upon the theory that the reply recites a contract wherein the covenants to be performed by the defendant are independent of the release signed by A. J. Pennings and his associates on March 20th, and that, therefore, a failure by the defendant to organize and finance the new company as agreed would not relieve Pennings from his obligations under the written instrument referred to. It must be borne in mind that the alleged contract is in writing so far as it binds Pennings; but, as regards the things to be done by Giboni, it rests in parol. From the recitals in the reply it appears that it was agreed that if Pennings and his associates would agree to the disposition of the $500, as proposed by Giboni, and would pay certain other obligations which they were not legally bound to do, he would unite with them in the organization of a company in which they were to be shareholders; and — 117 — that relying upon this agreement they signed the so-called release and delivered it to Giboni, who has failed and refused to fulfill his part of the contract. The question of whether any given set of covenants are dependent or independent is not an easy one. Indeed as is well said by Mr. Justice Bean in Burkhart v. Hart, 36 Or. 586 (60 Pac. 205): “There is no arbitrary test by which the question can be determined. The old decisions turned upon a technical construction of the language used, but the modern doctrine is that a contract should be construed according to the meaning and intention of the parties. It is unnecessary for us to make special reference to the several rules upon the subject or the various decisions of the courts. It is sufficient to say that, in the absence of very clear indications to the contrary, promises each of which forms the whole consideration for the other, will not be held to be independent of one another, and the failure of the party to perform on his part will excuse the other from liability to perform. ’ ’ 2. Following the doctrine thus laid down, we are of the opinion that the pleading disclosed a contract composed of dependent covenants which, if established by the evidence to the satisfaction of the jury, would be a defense as against the written instrument of March 20th. 3. Defendant assigns as error the action of the court in denying him the privilege of cross-examining A. J. Penwell when testifying for plaintiff upon her direct case in regard to the writing of March 20th. This ruling was based upon plaintiff’s contention that the alleged settlement was a part of defendant’s affirmative defense. We think the ruling was correct and, even if it were error, it could have worked no substantial injury, since the same witness testified upon rebuttal in regard to that feature of the case and de — 118 — fendant then had every opportunity for cross-examination. . 4. The next assignment is that the court erred in refusing to give the following instruction: "The court instructs you that the promissory note or due bill, as set out in paragraph 1 of plaintiff’s complaint, is a non-negotiable instrument and subject to any and all defenses that the defendant would have had against the original owner, and this applies to the claim of One Hundred Dollars, as set out in the second cause of action.” It was properly refused for the reason that it is misleading, in that it does not limit the available defenses to those that were in existence at the time defendant had notice of the assignment: 2 R. C. L., p. 629, § 39. 5. It is then urged that the court erred in refusing to give this instruction: ‘ ‘ The court instructs you that in regard to this allegation by plaintiff that this receipt or settlement of accounts had on March 20, 1913, was procured by certain promises of the defendant is to be wholly disregarded by you and not to be considered by you in arriving at your verdict.” Defendant founded his request for this instruction upon a certain judgment-roll which, apparently, had been offered and admitted in evidence and contends that it conclusively establishes the fact that A. J. Pennings, at the time of the alleged settlement, was personally indebted to defendant in the sum of $4,300. There is no judgment-roll in the record, neither is there any identification of this or any other exhibit in the certificate of the trial judge nor even in the certificate of the official stenographer. It follows that this assignment cannot be considered: Coach v. Gage, 70 Or. 182 (138 Pac. 847). — 119 — The remaining assignments challenge the propriety of a number of instructions given by the trial court upon the ground that they submit questions of law to the jury, and transfer to the jury the task of construing the legal effect of a contract. The instructions are extensive and it is not necessary to set them out in full. It is sufficient to say that the greater portion of the alleged agreement was not reduced to writing and depended upon parol evidence. We have examined the instructions carefully and cannot discover in them the fault for which defendant contends. Prom the conflicting evidence, the court leaves the jury to determine whether the writing of March 20th, was signed and agreed to by Pennings and his associates upon the condition that Giboni was to perform his obligations thereunder. This is a question of fact properly submitted to the jury. We find no substantial error in the record and the judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Moore concur.