Vassear v. . Livingston

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 250 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 251 The objections chiefly insisted on by the defendant proceed upon the assumption that his answer contained new matter constituting a counter claim, and if he is correct in this, he would be entitled to judgment on the pleadings, for the matters set up in the answer and which are not replied to, would, if admitted on the record, furnish a complete answer and an effectual bar to the cause of action set up in the complaint. But there is nothing in the nature of a counter claim stated in the answer. There was never any contract between the plaintiff and the defendant; and although the new matter was, if true, very pertinent to preclude the plaintiff from recovering on the demand assigned to him by Ritchie, it had no tendency to show an independent cause of action in favor of the defendant against the plaintiff. Section 150 of the Code of Procedure defines a counter claim. It must be a claim existing in favor of the defendant against the plaintiff, arising either out of the contract or transaction sued on or some other contract. Here the defendant had no claim against the plaintiff. If the facts were truly stated he had grounds for defending himself against the plaintiff's suit, but none whatever for an independent recovery against him. A counter claim must contain the substance necessary to sustain an action on behalf of the defendant against the plaintiff, if the plaintiff had not sued the defendant. It is quite obvious that nothing of that nature is stated in this answer. Where there is no counter claim set up in the answer there is no necessity of a reply, and the failure to put one in is not an admission of anything stated in the answer. In such cases the answer is considered as put in issue as upon a replication denying all the statements of new matter contained in it. (Code §§ 153, 168.) An objection was made to the examination of Ritchie as a witness without stating any grounds for the objection. It is now said that the notice of ten days mentioned in § 399 of the Code ought to have been given by *Page 253 the plaintiff. It is probably enough to say that no such objection was mentioned at the trial, and that we are to assume that the plaintiff would have shown that such a notice had been given if the objection had pointed out the want of it. The defendant did not, in the first instance, object to the admission of the witness, but after he had testified to certain facts connected with the assignment, he interposed the objection to his further examination. From this it is apparent that the objection was based upon the idea that the assignment was not, under the circumstances, sufficient to pass the title. But if the case enabled us to give a construction to the Code in the particular referred to, I should be of opinion, after a careful examination of the section, that a notice is not required where the defendant is himself a party to the contract sued on. It is only necessary where the defendant is sued as an assignee of the original contractor or as his executor or administrator. This I understand to be the plain meaning of the section. The restriction upon the right to examine an assignor only applies where the defendant is either an assignee or an executor or administrator. And in these cases the restriction is not universal. If the defendant's assignor is dead, the plaintiff's assignor cannot be examined at all; and if he is living and can be produced, the assignor of the plaintiff cannot be examined unless the plaintiff shall have given the notice of the intended examination. If the defendant was a party to the contract and is defending in his own right, the provision respecting notice does not touch the case. The apparent reason of the provision favors this construction. If the defendant is sued on his own contract by an assignee of the other contracting party, he knows that the original owner of the demand is, like every body else who has any knowledge respecting the controversy, a competent witness; and the defendant is moreover supposed to know all the facts of the case, and must take care *Page 254 to be present and see that the cross-examination is properly conducted. But if he was a stranger to the original contract, he needs a notice and time to look up the original contractor as a witness to repel any untrue testimony he may suspect will be given against him by the original owner of the demand sued on. If the original contractor, whose rights the defendant represents, be dead, the statute assumes that injustice may be done by allowing the original contractor represented by the plaintiff to be sworn, and therefore it excludes him altogether; and so where the attendance of the original party though living, cannot be procured. I have taken examples from actions on contracts, but the same reasons hold good in the other class of actions. I have supposed the plaintiff's assignor to be the witness proposed to be examined, as was the case here; but if it was the defendant's assignor who was called in the first instance, the rule would be the same, mutatis mutandis. If I am right in these views, no notice was necessary in this case. It is also objected that the transfer by Ritchie was a mere pretence and not a real transaction. The judge could not determine that this was so as matter of law. The assignment was obviously made to enable Ritchie to be a witness, as he frankly admits; but this does not show that it did not pass the interest which it purported to pass. It was very much such a transaction as used to be resorted to to enable an interested person to be a witness, where interest constituted an objection, and which was always sustained. Before this section was amended the assignor could not be sworn if he had parted with his interest to enable him to become a witness; but this was changed upon the last general revision of the Code, and the present plan was substituted. The defendant eventually had the benefit of his objection by the submission of the question upon the assignment to the jury, and he had also the advantage of being himself heard as a witness. I think that Ritchie was *Page 255 a competent witness, and I see no error in any of the decisions made upon the trial. The judgment should be affirmed.