Phipps v. Shegogg & Son

Smith, 0. J., delivered the opinion of the court. This suit involves a single question, arising upon the ruling of the court, in rejecting the testimony of the witness offered by the defendant. This suit was brought on a note made by plaintiffs in error, payable to Wyatt & Spencer, which was transferred by indorsement to the defendants in error, after it had fallen due. Phipps claimed as a set-off to the demand sued for, the amount of an open account in favor of Peterson & Phipps, and against the payees in the note. The open account was assigned to Phipps in writing, before the note was transferred by them to defendants in error. To prove the account, Phipps offered the witness whose testimony was ruled out. By the assignment,' Phipps acquired the equitable title to the amount due upon the account; and had a right to sue in the name of the assignors for his own use. He had, therefore, a demand against Wyatt & Spencer, which he could have enforced in a suit at law. Hence, we see no sufficient reason why he should not be permitted to avail himself of this demand as a set-off to, or as a payment of the claim asserted by the defendants in error; provided he could have made it available for either purpose, if the suit had been brought by the payees in the note instead of their indorsers. The statute is direct to this point. Hutch. Dig. 640, § 9. In every action in which the defendant desires to prove any payment or set-off, he is required to file with his plea an account stating the nature of such payment or set-off, and the several items thereof, or he will not be allowed to prove, on the trial, such pay [246] ment or set-off, “unless tbe same be so plainly and particularly-described in tbe plea, as to give tbe plaintiff full notice of tbe character thereof.” Hutch. Dig. 847, § 61. There is nothing upon the record in this case, which shows that the account referred to in the answer, or that any account whatever, was filed with the plea or answer of the plaintiff in error. Anri it is manifest, that there is no such plain and particular description contained in the answer, as to give full notice of the character of the account. For this reason, we presume, the testimony of the witness was excluded, and we think properly. Judgment affirmed. A re-argument was asked for, but refused.