Opinion
November 16, 1926. Rehearing Denied February 19, 1927.
PAYMENT: Pleadings — General Denial. Evidence of payment of an 1 account is not admissible under a general denial. (See Book of Anno., Vol. 1, Sec. 11209, Anno. 47 et seq.)
ATTACHMENT: Bond — Action — Attorney Fee — Improper Allowance.
Headnote 1: Headnote 2:
Headnote 1: 21 R.C.L. 116.
Appeal from Waterloo Municipal Court. — J.C. BEEM, Judge.
Action at law in the municipal court on an account for $167 for merchandise sold and delivered to the defendant. The answer was a general denial, except as to the amount of $ 11.29. The defendant also filed a counterclaim on the attachment bond for wrongfully suing out the attachment. A verdict was rendered denying to the plaintiff any recovery on his claim in excess of $ 11.29, and awarding damages on the counterclaim for $225. There was a judgment on the verdict, and plaintiff appeals. — Reversed.
John H. Meyers, for appellant.
Sullivan Sullivan, for appellee.
There is no appearance for the appellee. The record before us presents a clear case of miscarriage of justice. The plaintiff's petition set forth an itemized statement of his account. The only defense pleaded was a general denial. The 1. PAYMENT: defendant, as a witness, denied none of these pleadings: items, but impliedly admitted them. He general testified, however, that he paid them. No such denial. issue was tendered. The plaintiff's items were thus wholly undenied in the evidence, and in effect admitted. The court, however, submitted the issue on the general denial to the jury, and the verdict of the jury rejected the account in toto, except as admitted.
The testimony of the defendant that he had paid the account was, on the face of it, such manifest perjury that the resulting verdict could not have been rendered except through passion and prejudice. The defendant claimed 2. ATTACHMENT: attorney fees as a part of his damages in the bond: counterclaim, and evidence was introduced in action: support thereof before the jury, and was attorney included in the submission to the jury. An fee: additional attorney fee to the amount of $80 was improper allowed by the court, upon motion, and taxed as allowance. a part of the costs. We know of no rule that will permit either the duplication or splitting of attorney fees in this manner.
The judgment below is, accordingly, reversed. — Reversed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur.