Boyett v. . Vaughan

(SMITH, C. J., and BYNUM, J., Dissenting.) The plaintiff in his complaint before the Justice of the Peace claimed that the defendant was indebted to him in the sum of $105 for lumber, and the defendant denied the debt and pleaded a counterclaim due by note from the plaintiff to him for $200. The Justice gave judgment in favor of defendant for $69. 13, the excess of his counterclaim, and plaintiff appealed. When the case came on for trial in the Superior Court the defendant moved for judgment because there was no replication denying the counterclaim. The Court refused the motion and allowed the plaintiff then to put in his replication. The plaintiff's replication alleged that the note was for part of the purchase money for land sold and conveyed to him by defendant, and that there was a parol agreement at the time of sale that the defendant should pay him $4 per acre for every acre the land might fall short of its estimated quantity of 400 acres, and that the deficiency was 83 acres, for which at that rate he set up a counterclaim. The counterclaim was denied by defendant. Issues were submitted to the jury and they found that defendant did agree to pay for the deficiency in the land, and that the deficiency was 83 acres as alleged by the plaintiff. The land was conveyed to plaintiff by deed in January, 1874, and about a year thereafter reconveyed by him to defendant to secure the said note and other debts he owed the defendant. The defendant moved for judgment notwithstanding (530) the verdict which the Court denied and caused the following entry to be made: "Upon suggestion of a diminution of the record as shown by the transcript of the Justice, the plaintiff is permitted by the Court to file his replication and counterclaim to the answer and counterclaim of the defendant, and the transcript is ordered to be amended accordingly." The plaintiff was also allowed to remit $57. 06 of his claim on account of the deficiency in the land, to which *Page 396 defendant excepted, and thereupon judgment was rendered for plaintiff against defendant for $200 and interest from 21 January, 1878, and costs, and the defendant appealed. The question is as to what defense a plaintiff may make to a counterclaim on the part of the defendant. C. C. P., sec. 105, provides that "when the answer contains new matter constituting a counterclaim the plaintiff may * * * reply to such new matter, * * * and he may allege * * * any new matter not inconsistent with the complaint constituting a defense to such new matter in the answer. " It is insisted that the plaintiff can not allege new matter to the counterclaim, but is confined to a reply to the counterclaim, or by denying it altogether, or by confessing and avoiding it. That is error, however, and grows probably out of considering that sec. 101 governs it. But sec. 101 relates only to the answer. Sec. 105, which relates to thereply governs it, and provides expressly that the plaintiff may not only reply to the defendant's counterclaim, but may allege "new matter" which has no connection with the matter alleged in the complaint, or the new matter alleged in the answer, the only restriction being (531) that it shall not be inconsistent with the complaint — "any new matter not inconsistent with the complaint constituting a defense to such new matter in the answer. " It is not necessary that we should give a reason for this because a statute is arbitrary and is good without a reason; but it would be inconvenient and unjust if it were otherwise. Before C. C. P. a defendant could plead a setoff to plaintiff's claim and defeat the plaintiff's recovering in whole or in part as the case might be, but the defendant could not recover his setoff and have judgment against the plaintiff; but under C. C. P. he may not only defeat the plaintiff, but have judgment against the plaintiff for the excess of his counterclaim. And it would be manifestly unjust to deprive the plaintiff of a defense to the counterclaim which is set up not only to defeat his action but to subject him to a judgment upon the counterclaim. In our case the plaintiff claims a lumber bill against the defendant. Very well, says the defendant, I owe it, but you owe me a balance for a tract of land you bought of me. Very well, says the plaintiff, I owe it, but you owe me on account of that same land transaction. It was certainly contemplated by the C. C. P. that all these matters might be settled in the same suit. *Page 397 We do not think that there is any force in the defendant's objection that the plaintiff can not prove his new matter by parol, because he does not seek by parol to contradict the written contract about the land. The contract by parol which he sets up is consistent with the written contract and is outside of it. Judgment affirmed and judgment here.