Hart v. Cooper

         The amount due to the defendants from Mead was the difference between the debits and credits of their account with him, and that was $ 35 88.

         The objection of defendants--that evidence tending to show the debit side of their account with Mead was inadmissible because it had not been pleaded--was untenable. The plaintiff had no opportunity to plead it. It made no part of his cause of action, and would have been out of place in his complaint. The statute no longer allows a replication, but presumes a denial by the plaintiff of all the allegations of the answer. In this case the allegation of the answer in respect of the amount of offset to which the defendants were entitled were taken as denied by plaintiff, and defendants were put upon proof of the allegation. They offered the credit side of the account, and it was competent and proper for the plaintiff then to show the debit side, to enable the Court to determine the amount of offset to which they wereequitably entitled.

         OPINION          By the Court:

         The action is upon a promissory note made by the defendants to one Mead. It appears from the bill of exceptions that, after the note was indorsed and transferred by Mead, but before the defendants had knowledge of that fact, Mead and the defendants had certain business dealings by which he became indebted to them in the sum of $ 235 80, and they to him in the sum of $ 200. The defendants pleaded their account as a set-off to the note, and when the plaintiff sought to introduce evidence to prove the indebtedness to Mead, and that there was really only a balance of $ 35 80 due from him, the defendants objected, on the ground that the evidence was irrelevant and incompetent, because the plaintiff had not pleaded this indebtedness. The Court overruled this objection and admitted the evidence, and this constitutes the only error assigned in the case.          There was no error in the ruling. The two demands were cross - demands, and must be deemed compensated, so far as they equaled each other. The plaintiff had no opportunity, and was, therefore, not required to plead the demand in favor of Mead.

         Judgment and order affirmed.