Springer v. . Dwyer

Chueoh, Ch. J. The ground upon which the offer to prove the fraud of Dreyfous was rejected does not appear. Eo ground was specified, either in the objection or decision. One of the learned judges, who delivered an opinion below, justifies the rejection upon the ground that the offer did not constitute a defence based upon a rescission of the contract, because it is nbt stated that the defendant Dwyer reassigned, or offered to reassign, the partnership effects which had been assigned to him when the note was given. This was undoubtedly necessary if a rescission was claimed as the only defence; but if this ground had been specified we cannot say that the defect might not have been supplied or obviated. It may have been rejected upon the ground that it was not shown that the plaintiff was not a bona fide purchaser of the note before maturity; and, from the various offers made and rejected, as they appear in the case, it is not improbable that such was the opinion of the court; and one of the learned judges at the General Term intimates that such proof was not made. It was proved that the plaintiff stated, a few days *22 after the maturity of the note, that he did not then own it. This evidence was not sufficient to base a defence of a want of title to the note at the time of the commencement of the action; but it was sufficient prima facie to show a want of title when the note became due so as to let in any defence which the defendant had. Besides, the offer, taken together, is ambiguous. It may be inferred that the defendant could prove that the entire consideration for the note was the fact assumed by the fraud of Dreyfous that the books were correct, and the sum of $500 was due him thereon; and if the objection had been specific the offer could have been made more explicit. If the facts stated would not constitute a defence, on the ground of a rescission and failure of consideration, they were competent to establish a recoupment. It is said that this defence was not set up in the answer of either Dwyer or Mossman, and that it could only be available to Dwyer alone. BTo objection was made on account of the pleadings. If such objection had been made, the defendant, if necessary, might have procured an amendment. But Dwyer’s answer contains all the facts necessary to constitute a defence for want of consideration, or for a recoupment of damages, and it was not necessary to state which he would insist upon; or if he did so state he would not be precluded from insisting upon any defence which the facts alleged would justify. It is the facts alleged which constitute the defence; and whether the party calls it by the right name is not material. And when the principal and surety are sued together a successful recoupment by the former would inure to the benefit of the latter as well, although the surety could not, if sued alone, avail himself of this defence. (25 N. Y., 306.) We think there should be a new trial. All concur. Judgment reversed and new trial ordered.