Clarine v. Nelson

Maxwell, J. This action was commenced before a justice of the peace to recover from the defendant the sum of $33.36, balance claimed to be due the plaintiff on an account, as follows: “Oxford, Neb., Aug. 3d, 1882. “Andrew A. Nelson, [Dr.] “Dec. 1st, 1881, To cash for ticket..................$55 00 “May 1st, 1882, “ “ .................. 10 00 “Aug. 2d, 1882, Damages for not fulfilling contract 25 00 “$90 00 “Aug. 2d, 1882, Credit by eight month’s work at “ $7.08 per month.................$56 64 “$33 36” [441] On the trial of the cause the justice found that the defendant was indebted to the plaintiff on the cause of action set forth in the bill of particulars in the sum of $63.28, and that the plaintiff was indebted to the defendant for work and labor in the sum of $78. Judgment was thereupon rendered in favor of the defendant for the sum of $14.72 and costs of suit. The plaintiff took the case on error to the district court, where the judgment was affirmed. The errors assigned in this court are: 1st, That the district court erred in affirming the judgment of the justice; 2d, That the court erred in rendering judgment in favor of the defendant because he had pleaded no set-off. Sec. 951 of the code provides that in all cases before & justice the plaintiff, his agent, or attorney shall file with such justice a bill of the particulars of his demand, and the defendant if required by the plaintiff, his agent, or attorney, shall file a like bill of the particulars he may claim as a set-off; and the evidence on the trial shall be confined to the items set forth in said bills. It is only in cases where the defendant is required by the plaintiff, his agent, or attorney to file a bill of particulars of his set-off that it is necessary for him to do so. If not required to file a bill of particulars he may prove his set-off without pleading it. Where, however, the plaintiff in his bill of particulars sets out the entire account — the credits as well as the debits — and the only question is as to the amount due thereon, proof may be received as to the items of such account without the defendant filing a bill of the same items of credit. It is apparent that the proof was properly received, and there is no error in the record. The judgment is affirmed. JuDG-MENT AFFIRMED, The other judges concur.