Colt v. Cone

Gbay, J. The rulings upon the defendant’s right to recover under his declaration in set-off were correct. The statute of set-off declares that “ if any law for the limitation of actions ” (thus clearly including the special statute of limitation of actions against executors and administrators, as well as the general statute of limitations) “is alleged by way of defence to the defendant’s demand, the limitation shall be applied in the same manner as it would have been to an action brought on the same [289] demand if it had been commenced at the time when the plaintiffs’ action was commenced.” Gen. Sts. c. 130, § 18. The point, that the defendant could avail himself of so much only of his set-off as was equal in amount to the plaintiffs’ demand, was wisely abandoned at the argument; for it is expressly provided that, “ if it appears that there is a balance due from the plaintiff to the defendant, judgment shall be rendered for the defendant for the amount thereof.” Gen. Sts. c. 130, § 20. But the effect of the writing dated May 16,1863, was wrongly submitted to the jury. That writing was not a mere informal receipt or bill of parcels. It was a complete, though brief, agreement, signed by both parties, describing the property to be taken by the plaintiffs’ intestate and limiting the price which he was to pay therefor, and fixing the date as of which that price should be indorsed on the defendant’s note. If there had been any controversy as to the meaning of the words “ Ohio & Miss.,” or more than one note had been given by the defendant, paroi evidence would doubtless have been admissible to identify the subjects of the contract. But there was no dispute upon either of these questions; for it was admitted that the property transferred by the defendant to the plaintiffs’ intestate was stock in the Ohio & Mississippi Railroad Company, and that the note in suit was the only one to which the agreement could relate. These facts being ascertained, there was no doubt or ambiguity in the agreement, and the question of the intent of the parties to it must be determined by the court from the writing itself. Exceptions sustained.