Jones v. Maxton

Mr. Justice Waterman delivered the opinion of the court. The obligation of appellants to pay $1,450. either to appellee or the D. & M. Stone Company, was, before suit, a number of times admitted by appellants, and upon the trial does not seem to have been seriously disputed, save by a claim, by way of recoupment and set-off, for damages then claimed, because, as they then insisted, the store was not furnished as soon as, under the contract, it should have been. There was no pleading under which such damages could have been recovered as a set-off; they were, however, a proper subject for recoupment. The claim for such allowance seems to have been an afterthought, as before suit appellants had, so far as appears, made no such claim, but had insisted only that they knew not whom to pay. The pleadings of appellee were sufficient to warrant the admission of the evidence received and the recovery had. All that was alleged in the declaration as to the party for whose use the suit was brought, while immaterial and unnecessary, did not vitiate the pleading. Appellants might, perhaps, under the testimony of Max-ton that the contract was either in writing or it was a written acceptance of a written proposition, have required the writing or writings to be produced, or the loss of the same shown, before secondary evidence of their or its contents could be given; but they made no such objection, probably because neither the existence of- such contract ñor its contents was actually in dispute. The letter of appellants to appellee, dated March 16, 1892, was admissible as evidence of their indebtedness. The D. & M. Stone Oo. prosecuted this suit in the name of Maxtón, who furnished the store to appellants, and Mr. Maxton upon the trial disclaimed any right to receive the $1,450. Counsel for the D. & M. Stone Co. not only brought and prosecuted the suit for its use and benefit, but testified on the trial in the plaintiff’s behalf, as to his previous endeavors to collect the claim from appellants for it. The record is ample to conclude the D. & M. Stone Co. as to any suit for this $1,450 it might bring against appellants.- The trial and findings were by the court, jury being waived. , No written propositions of law were submitted to be held and no exception can.be taken to its conclusion. Upon a contract for $2,200,' appellants appear to have paid $1,184.50, and to have had a judgment-rendered against them of $1,017.50, total $2,212—an allowance of $12 for interest on a claim apparently due over nine years ago. The judgment of the Circuit Court is affirmed.