Miller v. Caffray

North Dakota Supreme Court

Miller v. Caffray

192 N.W. 974, 49 N.D. 625, 1923 N.D. LEXIS 73

DecidedMarch 26, 1923

StatusPublished

This text of 192 N.W. 974 (Miller v. Caffray) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Caffray, 192 N.W. 974, 49 N.D. 625, 1923 N.D. LEXIS 73 (N.D. 1923).

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Opinion

Bronson, Ch. J.

Plaintiff recovered, in justice’s court, judgment upon a general account for goods and merchandise sold. Defendant appealed to the district court. There, after reframing of the pleadings and trial de novo before a jury, plaintiff recovered a judgment for $130.10. Defendant has now appealed to this court.

The complaint in the district court alleges an account stated for $90 and interest. The defense is a general denial and that plaintiff’s claim was the debt of a third person which defendant never, in writing, had agreed to pay. Plaintiff conducted a store in Napoleon, North Dakota. Goods were furnished by plaintiff to defendant and to his tenant in the amount of $19S.

Later, pursuant to plaintiff’s testimony, defendant gave a note therefor and received from plaintiff the charge slips for the goods sold. Later, he paid plaintiff $108 upon this note. Plaintiff surrendered to defendant the note, upon the understanding that defendant would pay .the balance in a few days. Plaintiff thereupon made a slip which showed a balance of $90 owing plaintiff upon sales to defendant. Later, [626]*626defendant signed this slip. Defendant destroyed the note. Defendant contends that erroneously plaintiff has brought this action upon an account stated instead of upon the note. This contention is without merit. Suit was upon an account stated, that is, upon a settled account. Defendant was in no position to complain concerning the form of the action after the destruction of the note and signing the slip that evidenced the balance due upon this account as a settled account. The defendant also maintains that there is no proof of any oral agreement or promise on the part of defendant in the record to pay for goods furnished the tenant. This contention is likewise without merit, for there is direct evidence, sufficient to support the jury’s verdict, that the goods were sold by plaintiff to defendant.

The judgment is affirmed with costs.

Christianson, Johnson, Birdzell, and Nuessle, JJ., concur.

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Bronson, Ch. J.

Plaintiff recovered, in justice’s court, judgment upon a general account for goods and merchandise sold. Defendant appealed to the district court. There, after reframing of the pleadings and trial de novo before a jury, plaintiff recovered a judgment for $130.10. Defendant has now appealed to this court.

The complaint in the district court alleges an account stated for $90 and interest. The defense is a general denial and that plaintiff’s claim was the debt of a third person which defendant never, in writing, had agreed to pay. Plaintiff conducted a store in Napoleon, North Dakota. Goods were furnished by plaintiff to defendant and to his tenant in the amount of $19S.

Later, pursuant to plaintiff’s testimony, defendant gave a note therefor and received from plaintiff the charge slips for the goods sold. Later, he paid plaintiff $108 upon this note. Plaintiff surrendered to defendant the note, upon the understanding that defendant would pay .the balance in a few days. Plaintiff thereupon made a slip which showed a balance of $90 owing plaintiff upon sales to defendant. Later, [626]*626defendant signed this slip. Defendant destroyed the note. Defendant contends that erroneously plaintiff has brought this action upon an account stated instead of upon the note. This contention is without merit. Suit was upon an account stated, that is, upon a settled account. Defendant was in no position to complain concerning the form of the action after the destruction of the note and signing the slip that evidenced the balance due upon this account as a settled account. The defendant also maintains that there is no proof of any oral agreement or promise on the part of defendant in the record to pay for goods furnished the tenant. This contention is likewise without merit, for there is direct evidence, sufficient to support the jury’s verdict, that the goods were sold by plaintiff to defendant.

The judgment is affirmed with costs.

Christianson, Johnson, Birdzell, and Nuessle, JJ., concur.

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Bluebook (online)

192 N.W. 974, 49 N.D. 625, 1923 N.D. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-caffray-nd-1923.