Hobbs v. Godlove

Worden, J. On January 30, 1860, Ilobbs, the appellant, filed bis claim against the estate of Joseph God!ove, in these words, viz., ''February 26, 1854. “The estate of Joseph Godlove to Eli Hobbs, Hr., who became twenty-one years of age on May 24, 1854. “To six years’ labor done for said Godlove, in bis lifetime, at his instance and request, to-wit: from February 26,1848, to February 26,1854, at twelve dollars per month, amounting to..............$864.00 “Cr. By.................................. 175.00 1689.00 “Interest from February 26, 1854, to date,........ 227.37 $916.37 (Signed) “Eli Hobbs.” This claim was duly verified by Hobbs. The defendants answered, issues were formed, and the cause was tried by a jury, resulting in a verdict and judgment for the defendants. Hobbs appeals. We will notice tlie pleadings so lar as any question is here made upon them. The defendants answered: [361] Second. “That in the lifetime of said Joseph, deceased, he fully paid the plaintiff the whole amount of said claim sued upon, to wit, on December 25, 1855.” Fifth. “That on December, 20, 1855, the plaintiff was indebted to said Josph God'ove, then in full life, but since deceased, in the sum of eight hundred dollars, &c., upon an account for goods, wares, merchandise and chattels sold and delivered to plaintiff', which were necessaries, a bill of particulars of which is filed herewith, which the executors oiler to set off, &c.” Eighth. “That on or about February 26, 1848, William Hobbs, the father of said E i, hired to Joseph, Godiove the said EH, who was then a minor, for the term of six years; for which the said Joseph God'ove agreed to pay said Eli one horse, saddle, bridle and martingale, and one suit of good clothing, at the expiration of six years, as pay for said services ; that before the expiration of said term of six years, the said EH, without any reason known to the defendants,left the employment of said Joseph, and went to work for one Baniy, That afterward, to wit: on December 25, 1855, the said Eli and William, his father, came to the said Joseph Godlore, and then and there settled all matters between the said parties, and the said Joseph Godiove then paid the said Eli Hobbs the sum of $rZ5, in money, in full payment of the claim filed herein against sai Í Joseph God’ore, for said horse, saddle, bridle and martingale, and suit of clothes, and that all parties were then fully satisfied, and so remained until the death of said Joseph.” A demurrer was filed to the eighth paragraph, and overruled. This is the first error complained of. We think this paragraph substantially good. That portion of it which alleges that Eli abandoned the employment without excuse, may be stricken out as surplusage. If it does no good, it certainly does no harm. The paragraph alleges that the work was done under a special contract made with the father of the plaintiff, who had the right during the minority of his son to hire out his labor and agree as to the compensation. The payment and receipt of the money, in lieu of the articles previously agreed upon, was as complete a [362] satisfaction of the claim as if the articles themselves had been delivered. Two objections, however, are made to this view: First. That it does not appear that the work sued for same w01'^ performed under the special contract. We think this sufficiently appears. The work sued for was-for six years, commencing February, 1848. The special contract was for six years, commencing at the same time. Second. That inasmuch as the paragraph admits that li i was a minor when the contract was made, and as it is not averred that he was of age when the payment was made, and as the payment, by the terms of the original contract, was to be made to Eli, and not to his father, Eli is not bound by the settlement, on account of his minority. We need not stop to inquire whether the arrangement would, or would not, have been binding on Eli had he been a minor when the settlement was made, as it sufficiently appears that he was then of full age. The claim filed by him alleges that he became twenty-one years of age on May 24, 1854. This settlement is alleged to have been made on December 25, 1855. This, on his own showing, was some time after he attained his majority. To the second, and also to the fifth paragraph of the ansAver, the plaintiff replied infancy. To these replications a demurrer Avas sustained, and, as Ave think, correctly. The second paragraph sets up payment in full of the claim sued upon. We suppose it is clear enough that if the plaintiff was paid in full for the claim sued upon, although an infant at the time of payment, he can not sue for and recover payment again. It is said that the demurrer to the replication to the fifth paragraph should have been overruled, for the double reason that the replication is good, and the paragraph to AA'hich it is replied is bad. The paragraph sets up a set-off, of goods, Avares, merchandise, &c., Avhich are alleged to have been necessaries. It is claimed that because the ansAver does not allege that the goods, &c., Avere necessary for the plaintiff, the replication of infancy Avas good. The implication is clear enough, from the ansAver, that the goods, &c., Avere necessary for the plaintiff, and. therefore the replication of [363] infancy was bad. The allegation in the answer that the goods, &c., sold and delivered to the plaintiff' were necessaries, can mean nothing else, reasonably, than that they were necessary for the plaintiff. But it is objected that the answer is bad because it assumes to answer the whole cause of action, while it sets up facts which can only bar- a part of it; in other words, that it offers to set off a claim of $800, in bar of a claim of $916.37. This point, however, does not seem to be well taken. The plaintiff’s claim, after deducting a credit which he gives, amounted, on February 26, 1854, to only $689. To be sure, he has added interest on it up to the time of filing the claim; but computing the interest on the plaintiif’s claim, from February 26, 1854, up to December 20, 1855, the time when the set-off is alleged to have accrued, and it amounted only to about $75, making the sum then due him, $764, being less than the set-off then alleged to have been due. These are all the questions made in reference to the pleadings. We pass to the only remaining point in the case. The plaintiff'moved to suppress some depositions taken by the defendants, on these grounds: First “Because the notice does not state any definite place, as prescribed by law, for taking said depositions. Second. “Because of the insufficiency of the decSmu.% in not giving the name or office of the person before whom the depositions were to be taken, and in not authorizing the taking of depositions in this case; also variance between the notice and dedimusd We will notice the objections thus pointed out to the Court below; but can not notice others urged in this Court, because not pointed out and made there. The notice stated that the depositions would be taken “at the post office, in the town of America, Kansas Territory.” It is objected that the notice was insufficient, because it did not state in what county of Kansas the town of America was situated, and because it did not state whether Kansas Territory was in or out of the United States, or upon what continent. There is evidently but little force in the latter [364] branch of the objection, and we incline to the opinion that the first is not well taken. Had there been an affidavit showing that there were two Americas in Kansas Terri:oryi or ^ie did not know, and could not readily ascertain, where, in the territory, the town named was situated, or that he was in any way misled by the notice, the question would have presented a different aspect. Without such, or a similar, showing, the notice should, we think, be deemed sufficient. Walter March, for the appellant. David Nation, for the appellees. The dedimus wras directed “to any officer legally authorized to take depositions.” The depositions were taken before a justice of the peace. Section 261 of the code clearly contemplates that a commission, or dedimus, may issue without naming the officer, and, as we think, without designating the office of the person, before whom the depositions are to be taken. The commission was well directed “to any officer legally authorized to take depositions.” The objections that the dedimus did not authorize the taking of depositions in this case, and that there is a variance between the notice and the dedimus, are taken on the ground that the dedimus, in naming the defendants, does not state the fiduciary character in which they are sued, while the notice does. These objections are not well taken. The suit was against the defendants, in a particular capacity to be sure, but still it was against them; and it is not material that the dedimus did not state that particular capacity. The plaintiff was in no manner misled, as it does not appear that he had any other suit pending against the defendants. The dedimus was sufficient, and the variance between that and the notice ■was of no consequence. If a writ be general, the complaint may describe the parties in a particular character. Cole v. Peniwell, 5 Blackf. 175. There is no error in the record for which the judgment ought to be reversed. Per Curiam. — The judgment is affirmed, with costs.