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Sloan Commission Co. v. Fry & Co.

may rescind the sale, return or offer to return the goods, and plead such rescission and tender as a complete de fense to the action. 28 Am. & Eng. Ency. Law [1st ed.]. 827, note 2; Warder v. Fisher, 48 Wis., 338; Schouler, Personal Property [3d ed.], 610-611; Perley v. Balch, 23 Pick. [Mass.], 282, 34 Am. Dec., 56. An examination of the answer filed in the county court, and set forth above, clearly shows that it fell far short of stating a defense to the cause of action set forth in the petition. It contained no counter-claim for damages for a breach of the warranty, and no allegation that the plaintiff had rescinded the sale by returning or offering to return the coffee. Such an allegation was absolutely necessary; without it the answer stated no defense. Brown v. Waters, 7 Neb., 424; Faulkner v. Klamp, 16 Neb., at page 178, 20 N. W. Rep., 220; Symns v. Benner, 31 Neb., at page 596, 48 N. W. Rep., 472; Phenix Iron Works v. McErony, 47 Neb., at page 234, 53 Am. St. Rep., at page 531, 66 N. W. Rep., 290; American Building & Loan Ass'n v. Bear, 48 Neb., at page 457, 67 N. W. Rep., 500; and when the defense of rescission and tender of the goods was set up for the first time in the answer filed in the district court the motion to strike was properly sustained. Darner v. Daggett,

supra.

2. By striking out paragraph eleven the answer was left in such a condition that it stated no defense. The rule is well established that where the answer contains no substantial defense, it is proper for the court to direct a verdict for the plaintiff. Hrabak v. Village of Dodge, 62 Neb., 591; Hill v. Campbell Commission Co., 54 Neb., at page 63.

It is further contended that the plaintiff herein was entitled to receive a credit on the account, for its socalled commission or rebate of three cents per pound on the whole consignment of coffee, together with $25, the amount of freight paid for its delivery at Omaha. It ap pears from the record that the price for which the suit was brought was twenty-seven cents per pound, while the

Burkholder v. Hollicheck.

purchase price, according to the terms of contract, was thirty cents. So it is evident that plaintiff was allowed the profit which it claimed. It further appears that the court, in directing the verdict, allowed the plaintiff a credit of $25, the amount of the freight paid, for a mere matter of computation shows us that sum was deducted. The court directed a verdict for the amount due the defendant herein after deducting all of the items of credit claimed in the answer.

It is apparent that the rulings of the district court, to which our attention has been challenged, were right, and we recommend that its judgment be affirmed.

GLANVILLE and ALBERT, CC., concur.

AFFIRMED.

AMOS L. BURKHOLDER V. ANNA HOLLICHECK.

FILED JUNE 18, 1903. No. 12,865.

Commissioner's opinion.

Department No. 2.

1. Forcible Entry and Detainer: NOTICE TO QUIT: SERVICE INSUFFICIENT: SUBSEQUENT ACTION. Where the plaintiff fails in an action of forcible entry and detainer, because of want of service of the statutory notice to quit, the judgment is not a bar to another action of the same kind, after such notice has been served.

2. Forcible Entry and Detainer: JUDGMENT: PAROL EVIDENCE AS TO BASIS FOR. Parol evidence is admissible to show that a finding of "not guilty" in such an action is based only upon want of service of notice to quit.

ERROR from the district court for Adams county. Tried below before ADAMS, J. Affirmed.

Tibbets Bros. & Morey, for plaintiff in error.

F. P. Olmstead and W. F. Byrd, contra.

GLANVILLE, C.

The plaintiff in error has stated this case, and the questions involved and his contention ith such commend

Burkholder v. Hollicheck.

able brevity and clearness that we copy the same from his brief:

"This is an ordinary case of forcible entry and detainer. The defenses in the trial court were, renewal by parol of a written lease for previous year, and former adjudication.

"The evidence on the first defense was conflicting; we shall, therefore, submit the case to this court only upon the matters and things pertaining to the second defense.

"On the 19th day of April, 1901, a complaint was filed in the county court of Adams county in the usual form. In this complaint was an allegation that plaintiff therein had served notice to quit March 1, 1901. There was a trial of that action, April 24, 1901, and a judgment rendered therein, finding the defendant therein not guilty and adjudging costs against plaintiff below.

"Thereafter, May 25, 1901, another action was commenced in the same court, a new complaint being filed, which was identical with the former one save that it alleged the service of notice 'on or about May 16, 1901.'

"To this complaint an answer was filed, pleading 'not guilty' and also res judicata. The reply was a general denial. A trial was had to the court and judgment was rendered against the defendant therein. An appeal was prosecuted to the district court and again, upon the same issues, judgment was rendered against defendant, plaintiff in error. To reverse said judgment, plaintiff brings the case to this court. On the trial, defendant below introduced the record of the former suit. To overcome such defense, plaintiff below was allowed to show by the county judge that the decision in the former suit was based, in his mind, upon imperfect service of the notice to quit. Exceptions were taken to the admission of such evidence and to the instructions relating thereto.

"Our assignments of error cover only the questions of the admissibility of oral evidence to contradict the records of a court; allowing a trial judge to explain the reasons of his decision, when there was but a single issue involved;

Burkholder v. Holicheck.

and the submission to a jury of the question of res judicata when the only issue presented was nul tiel record. Error is also predicated on the form of the instruction submitting this question.

"Our contention is that the service of the new notice to quit did not create a new cause of action, and that the former acquittal was conclusive and a bar to the second action, the parties and the cause of action being identical."

In addition to the foregoing statement it is necessary to say that the plaintiff in error, in his answer, pleads the judgment in the former action as a bar to this action and not as an estoppel upon any special question in dispute between the parties in both actions. After pleading the judgment his answer is, "And defendant alleges that said former adjudication is a bar to the maintenance of this present action."

The plaintiff in error insists upon three assignments of error: (1.) That the court erred in not instructing the jury to bring in a verdict for him, basing his contention upon the proof of prior judgment as a bar to this action. (2.) That the court erred in allowing the judge, before whom the previous action was tried without a jury, to testify that the finding of not guilty made in the first action was based upon a want of service of the notice to quit required by the statute. (3.) That the court erred. in giving an instruction submitting the question of previous adjudication to the jury.

In our view of the law bearing upon the question presented, if the court did not err in admitting the evidence of the county judge then there was no error in refusing an instruction to find for the plaintiff in error, and no prejudicial error in submitting the question of previous adjudication to the jury. We say this because the evidence, as it was admitted and stands in the bill of exceptions, clearly shows, without contradiction, that the judgment pleaded in bar was based upon a contention in that case, made by the plaintiff in error, that the defendant in error could not maintain that action because of want of

Burkholder v. Hollicheck.

service of the notice to quit required by the statute, and that in that contention, the plaintiff in error prevailed and the judgment was based upon the court's finding (not entered of record but testified to) on that question. That being his contention then, and having prevailed therein, he can not now be heard to contend that the service was good and that, therefore, the judgment was upon the merits of the cause. If A is sued by B on a matter with which C is connected and contends that the cause is joint between B and C, and prevails because C is not in, he can not claim misjoinder when sued by B and C and plead the judgment against A in bar.

Referring to the statute, we find that section 1021 of our Civil Code is, in part, as follows: "And judgments, either before the justice or in the district court, under this chapter, shall not be a bar to any after-action brought by either party." This has reference to actions of this kind. The plaintiff in error relies upon the case of Dale v. Doddridge, 9 Neb., 138, to sustain his contention that, notwithstanding this statute, the former judgment between these parties is a bar to this action. We think the case referred to does not go to the extent contended. It certainly did not need to go so far, and if it does, we are not willing to follow it. The syllabus in that case, upon this point, is as follows:

"The judgment of a justice of the peace, or of the district court, in proceedings in forcible entry and detainer, is conclusive in that proceeding on the matters in issue at the time of its rendition, unless such judgment is reversed or modified by proceedings in error."

The judgment offered in evidence, and not admitted at all, in that action, was one based upon the express finding of the court that the action was barred by the statute of limitation. That fact then became res judicata, and would estop either party in any form of action to dispute the fact so found. That fact established, would defeat a subsequent action in this form on the same cause; and the judgment and finding constituting indisputable evidence

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