Gleckler v. Slavens

Citations

• 5 S.D. 364
• 59 N.W. 323
• 1894 S.D. LEXIS 81

Syllabus

<p>1. Where, as their cause of action, plaintiffs plead a contract, performance on their part, and a breach by defendants, the defendants answer, denying the alleg’ed breach on their part, and for a counterclaim allege a breach on plaintiffs’ part, the plaintiffs may, in reply to the counterclaim, allege a further and independent agreement by defendants, not as modifying or adding to their cause of action as stated in their complaint, but to estop defendants from asserting their counterclaim.</p> <p>2. So, where plaintiffs plead a full compliance on their part with an agreement to deliver, as successively called for by defendants, beef cattle of a prescribed quality, condition and average weight, and a refusal by defendants to receive certain later offerings, and the defendants plead a counterclaim for damages, on the ground that such later offerings did not fulfill the requirements of the contract as to quality and weight a reply to such counterclaim that defendants agreed than, if plaintiffs would put into their earlier deliveries their best and heaviest cattle, they would accept the remainder on the contract, and that by so doing the average weight of the'remainder was materially reduced, although the average of the herd before the heaviest were thus taken out would have greatly exceeded the requirement of the contract, is not inconsistent with the cause of action stated in the complaint, and does not constitute a departure therefrom, as such new facts are not pleaded as an abandonment of plaintiffs’ claim of compliance on their part, or as new grounds as a cause of action, but as facts which ought to estop defendants from asserting such counterclaim.</p> <p>3. So far as the evidence upon any question of fact is substantially conflicting, the verdict of the jury, if such question were submitted on proper instructions, is conclusive upon this court.</p> <p>4. To constitute an estoppel in favor of plaintiffs it was not necessary that they testify categorically that