Puckett v. First National Bank ( 1968 )

Carter, J.,

dissenting.

This is an action to recover the amount due on an oral contract for mowing, raking, and baling hay. According to plaintiff’s evidence, “The contract was for eighteen cents, and I would give him 60 to seventy pound bales.” Several witnesses testified that the bales of hay weighed from 30 to 40 pounds. This evidence was in no manner disputed by the plaintiff. It cannot be questioned that the same amount of hay would produce more 40-pound bales than 60-pound bales. In accordance with plaintiff’s own evidence, the contract was not performed in accordance with its terms.

The majority opinion relies in part on the rule that it is within the province of the jury to reject the evidence of any witness. A jury may not reject the testimony of any or all witnesses. If this was true, practically every case could be disposed of on that theory. The general rule is: “Generally a verdict rendered contrary to, or in disregard of, evidence which was not improbable or inconsistent and was not contradicted or discredited will be set aside, while a verdict rendered in accordance with uncontradicted evidence will be sustained.” 66 C. J. S., New Trial, § 70c, p. 222. See, also, Parrish v. Peoples, 214 Minn. 589, 9 N. W. 2d 225. But in the instant case if the jury disbelieved all the evidence of the defendant, there still remains no evidence to sustain a finding that plaintiff complied with the terms of his contract with reference to the weight of the bales. Certainly a want of credible evidence by the defendant does not establish a necessary element of the contract on which the plaintiff sues and has the burden of proof. Plaintiff’s case is no more established after defendant and his witnesses testified than it was before even if they were disbelieved.

There is evidence that defendant gave plaintiff a check which was intended as full payment of the amount due under the oral contract. It is asserted that this is evidence of a compromise and settlement, an accord and satisfaction, or an account stated. The defendant denies that any such effect was had or intended. But the majority opinion asserts that the fact a check was given to the plaintiff is enough to sustain a judgment for the amount due on the oral contract. I concede that if the evidence was sufficient to sustain the judgment on any of the three stated theories, the plaintiff, in case of an adverse verdict, would have a proper basis for a new trial. But the trial court submitted nothing to the jury other than to find the terms, of the oral agreement and the amount due under it. The evidence of an account stated, an accord and satisfaction, or settlement is foreign to the issues, especially when as fragmentary as it was here, and results in a verdict that is contrary to the instructions and therefore contrary to law.

It is fundamental that a plaintiff may not plead one cause of action and recover on another. Nor may' a court submit a case on one theory and the jury return a proper verdict on another. Allegations of the petition and proof thereunder must agree. Scovel v. Isham, 113 Neb. 238, 202 N. W. 869. Many cases other than the one cited support this rule.

This action was started against the First National Bank of Atkinson on a check given the plaintiff by the defendant. Defendant Putnam, the maker of the check, was subsequently joined as a party defendant. Later the First National Bank of Atkinson was dismissed from the action by agreement of the parties. The case continued against Putnam as an action on the check. The case was submitted by the trial court solely on plaintiff’s claim of an oral contract for mowing, raking, and baling hay and defendant’s counterclaim for overpayment. The petition was not amended as to defendant Putnam before or after the trial, and it is clear that the verdict and judgment are not sustained by the pleadings. Since neither party raised the issue on appeal, we assume that the parties acquiesced in the manner in which the case was submitted to the jury. Bennett v. Baum, 90 Neb. 320, 133 N. W. 439; Glissmann v. Bauermeister, 149 Neb. 131, 30 N. W. 2d 649. I shall treat the case as did the parties. It does account, however, for some evidence of accord and satisfaction, and settlement getting into the record which is wholly incompetent on the theory on which the case was submitted by the trial court.

The trial court instructed the jury that plaintiff must establish by a preponderance of the evidence the making of an oral contract with the defendant, that he has performed all the terms of the contract, that he has made demand for the amount claimed to be due, and that there is now due the amount claimed or some amount. In the manner submitted, evidence of an accord and satisfaction, settlement, or any other cause of action is not material and the fact that it is contained in the record does not make it so. In other words, proof of an accord and satisfaction or settlement will not sustain a verdict in an action brought solely on the contract.

It is stated by the majority opinion that the fact the defendant was in and around the work on occasion is sufficient to sustain a finding that the bales weighed 60 pounds each. There is no evidence that defendant knew or acquiesced in the baling of smaller bales at the same price as the larger ones called for in the contract. It is clear that defendant has suffered a loss of approximately $2,250 by the reduced size of the bales alone. To say that defendant must suffer this loss merely because he was in and around the place where the contract was being performed states a rule of law with which I am wholly unfamiliar. His testimony is that he knew nothing of the light weight of the bales until after the check was given.

The verdict in the instant case was for $2,200, the amount of the check. It is plain that it was not for the total amount of the oral contract if it had been fully performed. The instructions having submitted the case on the oral contract alone and defendant’s claim of overpayment, the recovery on the basis of an accord and satisfaction or settlement is contrary to the instructions. It is hornbook law that a verdict that is contrary to the instructions will be set aside. This has been the law since we have been a state. Meyer v. Midland Pacific R.R. Co., 2 Neb. 319. A verdict rendered contrary to law, as contained in the instructions, will be set aside, whether the instructions were right or wrong. Standiford v. M. H. Green & Co., 54 Neb. 10, 74 N. W. 263. When a jury violates its duty to find its verdict in accordance with the law as given in the instructions of the court, the court should set aside the verdict. Olson v. Shellington, 162 Neb. 325, 75 N. W. 2d 709. A new trial should be allowed where material uncontradicted evidence has been disregarded by the jury. Hileman v. Maxwell, 97 Neb. 14, 149 N. W. 44. “Where the record clearly discloses that material testimony has been disregarded by the jury which, if considered and given due weight, would require a different verdict than that returned, a new trial will be granted.” Davis v. Security Ins. Co., 139 Neb. 730, 298 N. W. 687. In this case,, a plaintiff is permitted to recover on a theory not submitted to the jury and which the defendant disputes. I submit that this is error and that the judgment should be reversed and the cause remanded, and the case subsequently retried on all issues warranted by the pleadings and the evidence.

White, C. J., and Newton, J., join in this dissent.