Speers v. Sterrett

The opinion of the court was delivered, by Knox, J. This suit was brought upon a note given by Moses Sterrett to B. F. Weston for $100, dated April 27, 1854,. payable one year after date. When Weston transferred the note to Spear,, for whose use the suit was brought, does not distinctly appear.. Upon the trial, the defendant proposed to give in evidence as a set-off two notes given by Weston to Jacob Hart for $15 each, dated [194] 11th December, 1852; one payable in one year, and the other three months and twenty-one days after date. No objection was made to the reception of these notes in evidence, but the Court of Common Pleas was requested to charge the jury that unless the defendant had shown that he was the owner of the notes before the commencement of the suit, he was not entitled to a credit for the same. To this proposition the learned judge who presided, answered that the possession of the notes at the trial, by the defendant, was sufficient evidence to entitle him to offset them against the plaintiff’s claim. In this we think there was error. A cross demand may be set off, but it must belong to the defendant before the plaintiff commences his action, otherwise one having a perfect legal right to recover when his suit is instituted, may be mulcted, or as Chief Justice Gibson said in Pennell v. Grub, “soused” in the costs by his adversary’s purchase of a counter claim on the very day of the trial. Where one side attempts to prevent a recovery by setting up as a cross demand, a note payable to a third person not negotiable, he must show he was the owner of the note before the suit was commenced: 1 Harris 532, and 10 Harris 116. The mere possession of the notes upon the trial was no evidence of the time when they were purchased, nor was there anything in the testimony of William Peoples which showed when the notes were obtained by Sterrett. Under the evidence the defendant was not entitled to a credit for the amount of the Hart notes. Under the authority of the case of Nickle v. Baldwin, 4 W. & S. 292, Phillips v. Lawrence, 6 W. & S. 152, and Carman v. The Franklin Fire Insurance Company, Id. 155, it was competent for the defendant to give in evidence the damages sustained by him on account of the non-performance of the contract by the plaintiff for labour and board, but the form of the evidence was objectionable. The question of damages was a mixed one of law and fact. The witness should state the' fa,cts, the court determine the measure of damages, and from the facts as proved by the witnesses and the law as determined by the court, the jury should find the amount of damages sustained. To permit the witness to state in round numbers what in his opinion the damages were, was clearly erroneous. The other assignments are not sustained. Judgment reversed and venire de novo awarded.