Brennan v. Tietsort

Campbell, J. Brennan sued Tietsort under the common: counts and filed a bill of particulars of work and labor and a few items of cash, and a steel hammer. Defendant, under the general issue, gave notice and particulars of set-off. On the trial the court refused to allow defendant to prove any payments on plaintiff’s demand, except such items as were contained in his particulars of set-off. The case comes up chiefly on this ground. The rule is well established that payment can always be shown under the general issue in assumpsit, although in some other forms of action it was required at common law to be pleaded. 2 Stark. Ev. 79, 594; Huntoon v. Russell 41 Mich. 316. The purpose of a plea or notice of set-off, is to set up by way of counter-claim, and to obtain allowance in one action for, such independent causes of action as would be capable of being sued upon directly against plaintiff had they not been thus pleaded. But money voluntarily paid upon a debt can never, unless on some very peculiar equity, be sued for at all. If less than the whole debt, it reduces the amount of the indebtedness, but having been once paid it ceases to belong to the debtor, and can form no basis for action or cross-action on his behalf. The doctrine is elementary and need not be discussed. Some objections to the charge are left obscure by the record, and we pass them for that reason. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.