, . TOJtREY ,
'D,
UNITED STATES·
207
one .w:he.l'ethe principal has lostthe sale of his own, property by cohduCtof his agents. But the theory of the bill is that the property was actually sold, while the facts show that the sale has never been ,cOlppletc;ld, and, consequently, that the plaintiff has lost nothing by,ih,e transaction. The demurrer is sustained. '
TORREY
'IJ.
UNITED STATES.
(01rtmit Oourt, E. D. Missouri, E. D. April 22, 1800.) 1,., A,<lCORD A:ND SATISFACTIO:N-CO:NSIDERATION.
In action to recover a balance on a contraCt to deUver beef,defendant plea.ded that the agreement, as understood by both partias, was $3.50 per hundred for steers, witl,l20, per cent. deduction for all cows delivllnld, which lattElr clause was acciaentallr omitted from the contra.ct, and that pla.intiff had accepted a settlement on that basis in full satisfaction of all claims thereunder. 'On plaintiff's motion to strij{e'out, heLd, treating the plea as one of accord and astisfaction, the allegation mistake was necessary, as showing a consideration, for the settlement, alid it constituted a lellal defense. ' , , ' under,ihe,' Practice Act of MiSSOUri, (Rev. St. 1879, § 3461,) providing that -there one form of civil actiOn. Smith. v.Canning Co., 14 Mo. ApI!. 522, ' ,Tbe,actioll being ,broughiunder Act 'Cong. March ,8, 1887,c. 859, §, 2, providing tl!l1t the circuit courts shall have concurrent jurisdiction with'the court of claims in: cettial.u c'ases against the Uilited States, and that the 'udge shall be the trier of thirflLetsia such cases, tlIe,question of the right of parties to a trial by jury is not
an
",'
,2. CODE
, Treating the plea as an equitable defense td an' action at law, it was permissible,
DEl'E:NSE.
"
followed. '8.
CLAnlS'AGAINST U:NITE:oSTATES"'-JURISDICTION.
At .. On motion to strike out ' .. PlaintifI:spetition contains two counts"the first laying the damages at ,$525. alid, the second at $3,000, for other violations of the contract. 'Act Congo ¥arch 3, 1887, 359, § 2, providesthat the circuit coul"tsshall have conc#rrent jurisdiction with the court of claims in all actions pnited States where the amount involved exceeds &1,000, against and does ,'Ilot exceed $10,000. . ' Jay L:Torreyand E. W. Pattison, for plaintiff in error. Geo. D.lleynolds, U. S. Atty. . THAYER, J. In this case the plaintiff .8ues in the first count'to recover a balance alleged to be due on a contract with. the governirtent'to deliver '475,000 pounds of beef cattle (either steers or cows) at theSllosl10ne Indian agency. It is alleged in the petition that the price agre'ed to be paid was $3.50 per hundred on the hoof, but that the govlmiment only allowed and paid $2:80 per hundred for such cows as were delivered, and that, in consequence of its failure to pay for the cows at the price stipulated in the contract, there is a balance still due in the sum of $525. The government answers the complaint, first, by a general denial of all the allegations, as it is permitted to do under the code of
FEDERAL REPORTER,
vol. 42.
procedure in statE). It then pleads specially the following facts, in substance: That the contract in question on which plaintiff sues was for 475;000 pounds of beef, at the price of $3.50 per hundred on the hoot',""";'a deduction of 20 per cent., however, to be made from such price, in paying for all cows delivered; that plaintiff and the defenjant alike understood such to be the contract; that the cattle delivered under the contract were accepted and paid for in pursuance of such understanding; that plaintiff accepted the payment so made, in full satisfaction and discharge of all claims under said contract; but that in drafting the agreement the clause with reference to deducting 20 per cent. of the stipulated price in paying for cows was accidentally omitted, and that the omission was not discovt>red till long after the contract was made. 'rhere is a motion to strike out the special plea, on the ground that it is a:n equitable defense nQt permissible in a suit at law.· I am satisfied that the motion not.to prevail. 1. 'l'he matter pleaded, in my judgment, is not exclusively an equita.ble. defense. It is averred in the plea that plaintiff has accepted a certain stim, in full and of all claims under the. contract sued on. This is a legal defense, and, even in this aspect, it was probably thought necessary.to allege and prove that there was a mistake in drafting the contract from which a controversy might arise, as otherwise it might not appear that there was any consideration for accepting, by· way of satisfaction and discharge of all claims under the contract, a less sum than appeared tobe due according to its provisions, as the same had been erroneously written. Treating the plea as one of accord and satisfaction, and hence as a legal defense, it appears to the court that the allegation as to the mistake made in drafting the contract is a proper and necessary allegation. 2. But I am unwil1ing to admit that such a defense may not be made to a suitat law on the ·contract, even conceding it to be of an equitable nature. The government pleads that a mistake was made in drafting the contract,not as the basis of any affirmative relief sought, but purely by way of defense, and in negation of the right asserted by the plaintiff. In this state an equitable defense, made under such circumstances, is allowable in a suit at law. Smith v. Canning 00., 14 Mo. App. 522, and cases cited. Nothing is tobe gained, it would seem, by forcing the defendant to file a bill for the reformation of the contract, and for an injunction to stay the action at law until the suit for reformation is concluded. The question as to whether either party will be subjected to a different form. of trial than they are entitled to, is not even involved in this case, as, in any event, the suit being under the act of March 3, 1887, the issue of factniust be tried by the court. 1 am satisfied that the motlonis n,ot well taken, and it is accordingly overruled, with leaveto file. a reply.