Hubbard v. French

Opinion by Wickham, J., The plaintiffs’ claim, at the time judgment was entered, had [220] been reduced, by amendments to the two promissory notes, set forth in the statement. These notes, it is alleged, in the statement, were given by the defendant to the plaintiffs* in settlement of a book account. The affidavit of defense is somewhat deficient in precision, but when analyzed, it will be found to .aver, in substance, as follows: that there was a running account between the defendant and the plaintiffs from the year 1886, to the bringing of the suit, which account had never been closed or settled; that the notes in suit were given as part of the account, i. e. to be credits, when paid on the account; that after giving the notes, the defendant became satisfied, from an examination of his checks and other notes paid to the plaintiffs that he owed them nothing, having already paid in full; that after the suit was brought, the plaintiffs promised to give him a statement of account, without which he is unable to make a comparison between charges and payments, which promise was not kept; that the defendant, on October 12, 1889, paid the plaintiffs $258.50, for which he has received no credit, and, finally, that he believes he is in nowise indebted to the plaintiffs, and expects to prove this averment at the trial by showing his payments and comparing them with the plaintiffs’ charges. These allegations, whether probable or improbable, we must for the present accept as true, and they entitle the defendant to be heard before a jury. The plaintiffs, by suing on the notes alone, cannot deprive the defendant of his right to show, if he can, that they were given in the way and for the purpose he avers, and that they are without consideration. It is hardly necessary to say, that the defendant, in order to meet the case as it stands, was only required to allege payment of the plaintiffs’ account, in a general way. He could not be expected to set forth the plaintiffs’ account for the period covered by the dealings, and, unless this were done, to particularize the payments would not aid us in reaching the truth. The first and second assignments of error are dismissed. The third is sustained. The judgment is reversed and a procedendo awarded.