(dissenting).
I dissent. There were three writings between the parties. The first dated March 14, 1957, was a valid contract, supported by consideration; the second, dated March 16, 1957 had to do with method of payment, which could be justified and binding, perhaps, since it simply implemented the first, with respect to mode of payment, — not as to the principal obligation. The third instrument in writing, dated March 30, 1957, purported to reduce the primary obligation by $1,250 if payment were made in cash instead of on protracted terms. It was loosely drawn, recited no consideration or any definite time for payment. Defendants did not respond to this or any of the other written instruments and refused to recognize either for several alleged reasons, including fraud in the inception, — and that was their defense in Nielsen v. Rucker,1 —a position we rejected.
A suit was filed based on the third document ($3,500), but it was dismissed on motion of the plaintiff without prejudice, after which the present litigation was launched based on the initial earnest money agreement ($4,750). The $3,500 suit, therefore, had a status as though it never had been filed. Consequently, it was error to admit the file in that case in the instant case, and greater error to base the $3,500 judgment in the present case on the record in the former. This is particularly true, since defendants in the principal case, after insisting on and procuring admission of the file in the previous case, promptly denied liability thereunder, or under any other alleged contract. Significantly, they did not plead that they owed only $3,500. They pleaded they owed nothing.
Logically, it follows that defendants’ contention that there was no obligation at all should have been the only issue in this case. The introduction of the file in the $3,500 lawsuit should be held to have been in error. The only matter left was the contention of the cross-appeal for $4,750 on the only clear, consideration-supported document extant in this case.
The defendants appealed the $3,500 judgment and then moved to dismiss their appeal. At that juncture, had there been no cross-appeal, the $3,500 judgment would have been affirmed. There was nothing then left for this court to determine save the merits of the cross-appeal based on the record, which clearly reflects a promise to pay $4,750, without any refutation by defendants, except by an abortive claim of fraud, which we negated in Nielsen v. Rucker, supra.
The main opinion talks of the $3,500 “agreement” and surmises that there must *213have been consideration therefor, else the parties would not have signed it. The consideration is supplied by this court through conjecture and not by any showing in the record of any quid pro quo. Assuming there may have been some question as to consideration, it would have nothing to do with the erroneous admission into evidence at defendants’ behest of an alleged $3,500 agreement which defendants themselves claimed to be void. Some other conclusion could have maintained, perhaps, if defendants had taken the position that the $3,500 document was binding to the exclusion of that for $4,750. But they didn’t.
The main opinion talks about an accord and satisfaction. This is untenable, since both parties claimed there was no such settlement or agreement. The court presumed to make such an agreement for them over their mutual rejection of such a theory. Besides, under the Rules an accord and satisfaction must be pleaded as an affirmative defense,2 which was not pleaded, but which was rejected by an untenable defense of fraud that allegedly vitiated not only the $3,500 claim but the two others.
Furthermore, assuming that there might be a question as to the efficacy of the $3,500 document, the only possible conclusion would be that payment should have been made within a reasonable time. Defendants made no offer to comply for 5 years, or at all, which would point up the invalidity of any such contract, which strangely enough both parties emphatically claimed to be invalid and unenforceable.
This case should be remanded with instruction to enter judgment for plaintiff for $4,750, with interest.
CALLISTER, J., concurs in the dissenting opinion of HENRIOD, C. J.. 8 Utah 2d 302, 333 P.2d 1067 (1959).
. Rule 8(c) Utah Rules of Civil Procedure.