Greene v. Harris and Another

Potter, J. This is a bill filed August 29, 1868, to redeem a mortgage on the complainant’s print-works, and also claims a balance due the complainant. The mortgage was executed by the complainant, May 19,1855, to secure a note for $40,000, and also all claims, debts, and demands due, or that might become due, and all sums due by note, book account, or otherwise, and also to secure endorsements, &c. The bill alleges that the parties had been in the closest business relations since 1841, the' complainant and his son Henry printing cloths and the said Harris selling them, a part of the time on joint account, and that for a part of the time the goods were printed by complainant and sold by Harris at prices fixed by said Harris, under certain confidential agreements. And that on the first day of January, 1359, said Harris agreed that he would thereafter allow the complainant one-eighth of one cent per yard more than the prices allowed by the Slaters to James Saunders, a near neighbor of the complainant, for similar work, and fixed certain prices as those prices, which were at two different times afterwards reduced by said Harris, subject, as the complainant alleges, to said agreement, and the complainant supposing that they were the prices paid to Saunders ; and the complainant alleges that as he and Saunders were competitors in business, he did not inquire of Mr. Saunders what prices he was receiving, and did not know what they were, and did not discover what they were until December, 1868 ; and he alleges that said Harris has informed him that he, said Harris, did know what the Saunders prices were; all which, both as to *407 the agreement to pay said prices and as to his knowledge of them, Harris, in his answer sworn to, (but the oath to which had been waived,) denies. And the complainant claims that the prices in the accounts rendered by him were fixed by said Harris, the complainant supposing that they were the same as the Saunders prices ; and he now claims that they should be corrected and made to correspond to the Saunders prices, and that upon a correction of said prices, instead of anything being due said Harris on said mortgage and accounts, there would be a large sum-due to the complainant., The case now comes before the full Gourt on appeal from the decision of a single judge, overruling certain defences set up by the defendant in his answer, by way of plea. The defendant Harris, in his answer, besides denying the alleged agreement and his knowledge of said prices, sets up these defences, and claims, under the rules of court, the same benefit as if they had been specially pleaded. 1. The Statute of Frauds. That if any such contract ever existed, it was a contract not to be performed within one year, and was not in writing, and therefore void. On examining the bill, answer, and attached exhibits, we cannot find that it is anywhere alleged that there was ever any contract for a year, or for any very definite time. On the contrary, the agreement of 1854 expressly states that it was “ to continue as long as the parties are mutually satisfied,” and there is nothing to show that there was ever afterwards any agreement for a year or longer. This plea, therefore, must be overruled. 2. The Statute of Limitations. The first plea of the statute is to the whole claim. As the defendants’ answer admits that there were services rendered and payments made from time to time, to December, 1862, without specifying dates more particularly, this plea must be overruled. The defendant subsequently claims the benefit of the statute for all items of account within six years. He does not specify, and does not aver, that any are within six years, which would *408 in fact have contradicted the former plea; but we think best to reserve this matter, leaving to the defendant the benefit of it at the hearing. 3. Stated Accounts. The defendant Harris sets up that particular and stated accounts of all the business have been mutually rendered and exchanged between the parties. He does not state that they are in writing, but that is necessarily implied, and he does state the balance of said accounts, the difference between the parties being only $80.12 abatement claimed y said Greene in the interest account. This defence is set up in the answer, and the defendant claims the same benefit under the rules as if pleaded. The complainant objects that it is defective, because it does not contain an averment that the accounts so rendered were correct'and true. If this defence were made by way of a formal plea, it would undoubtedly be necessary that it should contain an averment that the accounts were correct and true, as otherwise it would not negative the averments of mistake or fraud which are made in the bill for the very purpose of meeting this plea, and which could, under the old practice, have been made by way of replication to the plea. The defendant must deny these allegations or his plea will not avail him ; it will be no plea. But this plea is itself a part of an answer; and other parts of the answer do contain denials of the alleged agreements as to prices and of Harris’s knowledge of the prices ; and we are of opinion’ that these denials or negative averments are to be taken in connection with the plea and are sufficient. If the plea was a regular plea of stated accounts, with an averment of their correctness and truth, the question for the court to decide would be, — is the plea a sufficient plea in bar, if true ? And as it now stands, it may be stated thus : Is the defence of stated accounts set up in the answer, and in connection with the aforesaid negative averments, sufficient ? Stated ac counts is undoubtedly a good defence, unless it is shown that there was either error or fraud in the accounts; and this error or fraud is for the complainant to prove. This plea, therefore, connected with the aforesaid averments, must be sustained. *409 Under the strict rules of the old practice, if a plea was set down for argument, its truth was admitted, not merely for the purposes of the argument, but according to many of the authorities conclusively, and the only question was its sufficiency; but • by the general modern practice, the defendant would be allowed to reply and put the alleged facts in issue. Rhode Island v. Massachusetts, 14 Pet. 210, 257. And the chancery rules of New York (Rule 47) made special provision for this case. So, on the other hand if the complainant replies to a plea, he could formerly only question its truth, and not its sufficiency. And while the court say that this rule should not lightly be departed from yet if the complainant has replied inadvertently, they will permit him to withdraw it. Hughes v. Blake, 6 Wheat. 453, 472. The object of pleading in equity, as at law, is to confine the trial to the real questions in dispute; and the court will never suffer j ustiee to be defeated by the merely technical forms which are resorted to. In a case like the present, it would be in the discretion of the court to let the consideration of all the pleas go over until the full hearing, reserving to the defendant the fall benefit of them at said hearing; but the course we have taken seems to narrow down the questions at issue, and at the same time to leave open the questions of fact as to error and fraud, which we understand to be the real questions in issue between the parties, and may thus be saved the trouble and expense of taking evidence upon points which would afterwards be decided against them. Decree. A decree was entered in substance as follows: — 1. Overruling plea of the statute offrauds. 2. Overruling respondent Harris’s plea of the statute of limitations to the whole suit, without prejudice to his right to insist upon it in his ansiver. 3. Reserving the plea as to items of account beyond six years, to the hearing, á: Allowing the plea of stated accounts: with leave to plaintiff to reply or amend.