Baldwin v. Walsworth

By the Court, Beardsley, J. The first count in the declaration is in debt on simple contract, for goods, work, money, &c., in the usual form. To this the defendant pleaded as a second plea a former recovery for the same causes of action, the judgment being rendered in a justice’s court in an action wherein the present defendant was plaintiff, and the now plaintiffs were defendants. It is pleaded as a judgment in favor of the defendants in that cause for $59.46, being an amount of set-off in their favor and costs. (2 R S., 235, § 52.) The third plea to said count is founded on the statute, which declares that “ if a defendant neglect to plead or give notice of any set-off, which, according to the preceding provisions, might have been allowed to him on the trial of the cause, he shall forever thereafter be precluded from maintaining any action to recover the same, or any part thereof.” (§ 57.) A case under this section is made by the plea, and on its face an effective bar is presented. Ho objection to the substance or form of either of these pleas is made on the part of the plaintiffs,- but it is insisted that the replications demurred to, furnish good answers to the pleas. Three replications (numbers 3, 4, 5) are in question, each of which assumes to be an answer to both pleas, and must furnish a good answer to both or the pleading is vicious. (1 Oh. PL, 8th Amer. ed., 523; Lattice v. Vail, 17 Wend., 188; Nevins v. Keeler, 6 Johns., 63.) The third replication is that on the trial of the suit or [349] action mentioned in said pleas (for the replication erroneously assumes that but one suit or action is mentioned), the defendants therein “ did offer evidence and proffer proof of the said demands” claimed in said first count, and the plaintiff in said cause “ objected to the same, and the court then did thereupon upon the prayer of said ” plaintiff “ adjudge and determine that the said demands should not be received, and did exclude and reject the same,” concluding with a verification. This is clearly no answer to the first of these pleas. That sets up a recovery for the same causes of action specified in the first count, and the.replication, virtually conceding that the plea is true, sets up new matter to avoid the effect of the recovery. By a recovery of judgment on simple contract debts, they are merged and extinguished, and such must be taken to have been the effect of the judgment in this case. The replication furnishes no ground of escape from this conclusion. It may be true, as the replication alleges, that objection was made to, and that the court decided to exclude and reject these demands, and yet, in the further progress of the trial, they may have been allowed and carried into judgment as the plea states. We can not understand the replication as denying that fact, although issue upon it might have been taken. But the point is evaded, and matter wholly immaterial as pleaded, is set up by way of avoidance. This alone would entitle the defendant to judgment on the demurrer to the third replication, but the replication is also bad as an answer to' the third plea. “ To enable a defendant to make a set-off on the trial in a justice’s court, he must plead or give notice of it” (§ 51), and a neglect to do so, in a proper case, is a perpetual bar to a recovery on demands so neglected to be set off. (§ 57.) That is the defence interposed by the third plea, and it is not a good answer to show, as is done by this replication, that on the trial proof of these demands was offered and objected to, and that the justice thereupon refused to receive said demands. As the case was before the justice he decided correctly, for these causes of action had not been brought before him by plea or notice of set-off. True, the plea says the defendants pleaded the [350] general issue and a set-off, but this could not have been a set-off of these demands, for in a subsequent part of the plea it is expressly alleged that the defendants neglected “ to plead or set off” the demands mentioned and claimed in the first count. As these causes of action were not in issue before the justice, and we must intend were for that cause rejected by him, it is unnecessary to inquire what would be the effect of a rejection by the justice of causes of action properly before him, upon the pleadings, as matters of set-off. It may be that where the plaintiff procures such rejection to be made, he can not set up the judgment as a bar, and the case of Phinney v. Earle (9 Johns., 352) gives countenance to that idea; but we express no opinion upon it. The fourth replication to these pleas is that the demands contained in the first count of the declaration were not, at the time of the commencement of the said suit or action in the said pleas mentioned, “ such demands as by law could be set off in the said suit or action,” with a conclusion to the country. This is bad pleading ; it attempts to put in issue matter . of law and not matter of fact. The second plea shows what description of demands were in suit before the justice, and that the demands now claimed in the first count, were, in fact, set off and carried into judgment in that cause. The third plea says the demands claimed in the first count were neglected to be set off', and therefore no action can be sustained on these demands. We can not fail to see, on looking at the first count, that the causes of action therein specified were, in their nature, proper by way of set-off, and it is bad pleading to aver that they were not “ such demands as by law could be set-off in the said suit or action.” This replication does not furnish a legal answer to either plea. Nor can th& fifth replication be sustained. It alleges that the demands claimed in the first count were, at the time of the commencement of the suit in said pleas mentioned, and still are “more than one hundred dollars greater than the 'judgment rendered in that suit or action, and than the [351] moneys by the said defendant” in that suit “in any manner recovered in any suit or action,” and concludes with a verification. But this is no answer to the second plea, which sets up a judgment actually recovered on these demands. They may have been as great as the replication alleges and yet, according to the plea, they were actually carried into judgment, and thus, as simple contract demands, were absolutely extinguished. (§52.) The bar interposed by the third plea is, as we have seen, a neglect to plead or give notice of set-off as required by the statute. (§ 57.) But there are certain cases to which this section does not extend and in which the. right of action is not destroyed by neglecting to make a set-off. (§ 58.) Thus, the party is not precluded “ when the set-off shall be fifty dollars (a) more than the judgment which the plaintiff shall have recovered,” nor “ where a set-off shall have been claimed by ” the defendant in the suit “ and a balance exceeding fifty dollars (a) shall have been found in his favor.” (§ 58, subdivisions 1 and 3.) But here the plaintiff in the justice’s court recovered nothing, nor did the defendants therein claim a set-off and have a balance exceeding fifty dollars found in their favor. The fifth replication makes no such case, and is bad, in substance, as to both pleas. The defendant is entitled to judgment on all the demurrers, but the plaintiffs may amend on the usual terms. Ordered accordingly. Footnotes [(a)] How one hundred dollars.