Spencer v. Babcock

By the Court, E. Darwin Smith, J. The referee rightly disposed of the several questions presented during the progress of the trial, before and including the motion for a nonsuit. Arnold was a competent witness, and it was not error to allow him to state that the goods were- delivered upon the agreement.' Parol evidence is always admissible to apply the written contract to the facts, or to show the extrinsic facts to which the [335] contract relates, and its practical execution in reference to such facts. The only point of any difficulty in the case arises upon the offer of the defendant’s counsel, to show the matter of defense or counter-claim set up in their answer. This was overruled by the referee. The offer of the defendant’s counsel was in effect to prove that Arnold and the defendant had been partners in trade, and that Arnold we& indebted to the defendant in an unadjusted account to the amount of about $6000, arising out of their partnership dealings, and that the liability of the defendant, for which this suit was brought, was connected with the partnership transactions. This matter of counter-claim, if it was such, is not properly stated in the answer. It is embraced in five different specifications, numbered as five separate defenses, neither of which alone is a defense. Each defense or counterclaim should be a complete single defense of itself, without reference to others. (5 Sand. 210.) A defense cannot be made out in pleadings, by connecting two or more separate defenses together, more than it could formerly by connecting together two or more special pleas, each insufficient of itself. The matter set up in these five several defenses as numbered, if the action were in the name of Arnold, would, I think, constitute a good equitable counter-claim. The claim of the defendant is connected with the partnership transactions between Arnold & Babcock, and there is a strong equity that one claim should offset the other; and if Arnold had been brought before the court by cross-action, or were the plaintiff on the record, such application might be made. But the code is explicit that the counter-claim can only be a claim against the plaintiff. Section 150 is as follows : “ The counter-claim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff.\ between whom a several judgment might be had in the action.” This applies only to the plaintiff on the record. (See Gleason v. Moen, 2 Duer, 642.) Section 112 of the code, relating to assignments of choses in action, only relates to and protects set-offs or other defenses existing as against the assignor at the time' of the transfer. The right to set up a [336] counter-claim, after the assignment of a thing in action, is not reserved or given in any part of the code. For this reason the offer of the defendant was properly overruled by the referee, and a new trial must be denied. [Monroe General Term, September 1, 1856. T. R. Strong, Welles and Smith, Justices.]