Luther Cross & Co. v. Haskins

The opinion of the court was delivered by Collamer, J. The defendant’s objection to the deposi540 lion of Ware before the auditor is not well taken. That deposition is, in substance, that the deponent received of ^as^ins the be bas charged the plaintiffs, and gave him credit therefor on book, and has settled with him therefor, ^ .g nQW 0];jjected that this deposition could not be received, as the deponent’s books were better testimony. But they were not better testimony, that is, testimony of a higher character. They were not within the plaintiffs’ control, and, if produced, could have been no substitute for the deposition. They might have shown oil credited and settled, but could not have shown it was this oil. The deposition was therefore admissible, and it rested entirely with the auditor whether he would believe it without confirmation by the books. The plaintiffs object that the auditor and court did not allow their claim for hats. When the plaintiffs employed an agent to sell hats, he was authorized to receive pay ; and all, who purchased of him and paid him, in good faith, are protected, notwithstanding he appropriated the avails to his own use unauthorizedly, especially when the purchaser knew nothing of the agency. By our statute, the defendant may plead in offset matter ex-contractu, which plea is to be in the form of a declaration on the claim ; and to this the plaintiff may reply other claims against the defendant, and judgment is to be rendered for the ultimate balance. When the defendant’s claim is on book, he files his declaration on book, and the account is adjusted by an auditor. If the balance is found for the defendant, the statute directs its application in offset. If the balance is found for the original plaintiff, the statute does not directly provide the mode of proceeding, but its consistency is still to be preserved and the same course is to be followed and the same result produced as if the defendant had pleaded in offset in the form of assumpsit, and the plaintiff had replied in the same manner. The balance in favor of either party is to be carried into the action, and judgment to be for the ultimate balance. These pleadings in offset are all branches of the original action, and depositions to be used on their trial are properly taken and certified, when they are taken and certified to be used in that suit. In this case, the plaintiffs ultimately failed to sustain their original declaration. Still, the county court correctly entered [541] judgment for tbe plaintiffs, for the balance found in their * t ^ favor on book, on the defendant’s declaration; but the plaintiffs should recover cost only on that proceding in which they were successful. Judgment affirmed.