American Can Co. v. Grimm

Tyler, J. The declaration consists of the common counts in assumpsit, and two special counts declaring upon two certain promissory notes made by the defendant and payable to the plaintiff. The plaintiff filed a .specification with the writ, stating that it would claim' judgment only upon the two notes, both of which are dated July 20, 1902, one payable three months from date in the sum of $454.50, and the other in four months in the sum of $463.30'; plea, the general issue. At the March term’, 1905, of Rutland County Court the case was referred fi> be tried according to law. The referee met' the parties for trial on February 20, 1906, when the plaintiff introduced all its evidence and rested. The defendant not being ready to' proceed with the defence moved for and was granted a continuance until February 28, when he asked leave to1 file a plea and declaration in offset. The referee held that he had not authority to grant such leave, but continued the trial until a day past the next term of the county court to enable the defendant to make his motion in court. At that term the court on the defendant’s motion granted him leave to file an amended plea or declaration in offset, and held that the issues thereby raised went to the referee under the general reference. To this holding of the court the plaintiff excepted. [497] The case could not have been referred under V. S. 1437 without the agreement of the parties. The language of the statute is, “The supreme or county court may, * * * by agreement of parties appoint such referees in any cause pending in such court.” This reference was by agreement of the parties, and the question is whether the defendant, under V. S. 1156, had a right to file a plea in offset and have the subject-matter thereof tried by the referee. That section provides that if the plaintiff, in an action founded on contract, express or implied, is indebted to the defendant in such action, on contract express or implied, the defendant, after pleading the general issue or confessing the plaintiff’s cause of action, may plead such indebtedness in offset. Here the defendant; after pleading the general issue, for further plea said that the plaintiff was indebted to him in a large sum in damages occasioned by the plaintiff’s breach of a certain contract that it had made with the defendant, which damages the defendant prayed might be offset against the demand of the plaintiff. But the exceptions state that the issues raised by the defendant’s plea in offset entitled the parties to a trial by jury. They further state that the plea in offset' was founded upon a separate cause of action, independent of that upon which the plaintiff’s cause of action rested, and that it introduced into the case an entirely new and distinct subject-matter of litigation, which was the fact for anything that appears in the plea. The exception must be sustained. When the reference was made the case stood for trial upon the declaration and the plea of the general issue. The plea in offset that Was subsequently filed presented a new subject-matter of litigation, [498] independent of that upon which the declaration was founded. It raised issues that were triable by jury, and the plaintiff could not be deprived of the right of such trial without its consent. This holding is in accordance with the reasoning in Fulton v. Wiley, 32 Vt. 762, and in Cook v. Carpenter, 34 Vt. 121. The order of the County Court is reversed and cause remanded.