Cosgrove v. Evenson

165 N.W. 541, 39 S.D. 527, 1917 S.D. LEXIS 195

• Court: South Dakota Supreme Court
• Decided: December 13, 1917
• Docket: File No. 4179
• Status: Published

Opinion

WHITING, J.

Plaintiff sought a money judgment on six causes of action. Defendant denied either in part or in its entirety each of such causes of action except the fourth, and pleaded several counterclaims. Verdict and judgment were for plaintiff, and from such judgment and an order refusing a new trial this appeal was taken.

[i] Defendant testified that, outside of the other causes of action pleaded -by him; as counterclaims, there was, subsequent to the dates of plaintiffs alleged causes of action, an item of $127 due him- from plaintiff; that against this item plaintiff was entitled to a -credit for and in the amount of his fourth cause of action; that a full settlement had been agreed1 upon whereby it was agreed that the amount of plaintiff’s said fourth cause of action with another small item should be credited on this $127; and that, a-s a full settlement of all claims then existing between the parties, it was then and there agreed that there was left owing defendant $87. Defendant pleaded this settlement as a full defense, and- also pleaded the $87 as one of his counterclaims. Plaintiff, testifying, conceded the $127 item, and that there was an agreement to credit what he has pleaded as his fourth cause of action thereon; but he denied that there was a settlement in full of all matters between them when- defendant agreed to- make this credit on said $127. It will thus be seen that, if there was no settlement that could be pleaded as a defense, then, plaintiff was entitled to recover on his fourth cause of action as well as upon' such other causes as he may -have established, and defendant was enitled to counterclaim- the full $127, instead' of the $87.

[2] The court instructed the jury that no settlement was proven; that it -could find in favor of plaintiff on all six of his -causes- of action, if it found all sustained by the evidence; and that—

“no settlement having 'been effected, * * * the *■ * * counterclaim of defendant for $87, claimed as a balance due, falls with it, and this item should not be taken- into- consideration by you in making up you'r verdict.”

T-ha-t the quoted instruction was erroneous is too- plain to admit of discussion. Having instructed that -there was no- settlement, the court should have directed the jury that there was. no ■dispute but that plaintiff was entitled to recover on -his fourth cause of action, and defendant was entitled to recover on his first counterclaim, not the $87 pleaded, but the conceded $127.

We deem it u-nnnecessary to consider -the other errors assigned.

The judgment and order appealed from are reversed.