Bayne v. Fox

| La. | Jan 15, 1841

Simon, J.

delivei'ed the opinion of the coui-t.

Plaintiff seeks to recover the amount of an unliquidated account annexed to the petition; the items of which are composed of days’ work, money lent to and cash advanced for the defendant at different times during the year 1838. Defendant pleads the general issue, and further avers that plaintiff owes Mm for cash lent at different times during the same year, 1838, foi boarding paid on his account; for clothing to him furnished; for timber belonging to respondent and sold by plaintiff; for money handed Mm to pay hands employed by defendant and not accounted for, and for other accounts a sum much larger than the one claimed in the petition; and which, as he alleges, growing out of the same transactions which gave rise to the plaintiff’s claim, he pleads in reconvention and compensation of said plaintiff’s demand, and prays judgment against him for the balance that may be found in Ms, defendant’s, favor.

During the trial before the jury, plaintiff filed his peremptory exception to the defendant’s reconventional demand, on the ground that it was unnecessarily connected with or incidental to his original demand, and moved the court for a dismissal of the reconvention; this was ordered by the inferior tribunal, and the defendant having then offered testimony in support of his reconventional plea, the same was rejected by the judge a quo ; to whose [82] opinion defendant took a bill of exceptions.

The jury returned a verdict in favor of the plaintiff for the sum of $800, and after having vainly applied for a new trial, the defendant appealed.

The record comes up in a very imperfect state. The clerk and judge both certify that it contains all the evidence adduced by the parties on the trial of the cause, and yet it appears that three witnesses were examined in open court, whose evidence was not taken down or has not been copied in the record. The only testimony which the record contains, is the deposition of one John Slater, which was taken by virtue of a commission, and whose evidence, it' it stood alone, would clearly have been insufficient to sustain the plaintiff’s action. Under such circumstances, we should not, perhaps, hesitate to remand the case for a new trial, as from the certificates» of the clerk and of the judge, apparently incorrect, we are not enabled to ascertain for what reasons, and through whose fault, the record comes up incomplete.

It is not the first time that this court has had occasion to notice the gross negligence and manifest inattention with which certain clerks prepare the records which are to be brought before us, and the inaccurate statements contained in theirs certificates; but in this case they are so flagrant that we cannot forbear expressing our dissatisfaction, and informing them of our determination not to tolerate any longer such a culpable disregard of the important duties devolved upon them.

Our present inquiry will, however, be limited to the question arising out of the bill of exceptions taken to the dismissal of the defendant’s reeonventional demand. "We think the lower court erred. The demands set up by the parties respectively, are both unliquidated, but from the dates of their aocounts, the nature of the items therein contained, and the explanations given by the only witness whose evidence is found in the record, with regard to the capacity in which they stood towards each other, it appears to us clear that their said demands must have originated from one and the same transac- [83] tion, to wit, the employment of the plaintiff by the defendant. On the one hand, it has been shown that in 1838, plaintiff was employed by the defendant to superintend certain works undertaken by the said defendant; that in his said capacity, he was charged to hire the necessary hands, to discharge them and settle with them. On the other hand, the defendant alleges in his answer, that, at the same time, he paid for hoarding and for clothing on plaintiff’s account, that said plaintiff sold timber belonging to defendant and retained the proceeds, and that certain sums of money which were handed to him to pay hands employed by defendant, were not accounted for, &c. From these facts and pleadings, we are constrained to come to the conclusion that the two demands are closely connected with each other, that they ought to. be tried together; and that the evidence offered by the defendant to substantiate his reconventional plea, ought not to have been rejected.

According to the jurisprudence of this court, it is not necessary that a demand set up by way of reconvention, should always be liquidated. In the case of Agraisse v. Guedron, 2 Mart. N. S. 73, founded upon the doctrinero cognized in that of Evans v. Gray, 12 Martin, 475, this court said, “ if the plaintiff sues for a sum of money when, at the same time, he is indebted to the defendant in an amount, which though not liquidated, is yet as large as that demanded; in equity and in justice he ought not to recover.” The object of the rule is to diminish litigation, and to bring the contest between the parties to a speedy termination; and it matters not whether the demand against which the reconvention is opposed, be liquidated or not, provided the reconventional one is connected with the original demand. The same doctrine was again sanctioned by this court in the case of Montgomery v. Russell, 7 Mart. N. S. 288, in which it was held that although an unliquidated demand cannot be pleaded in compensation, yet it may be so in reconvention. In this [84] case, however, the two demands are of equal dignity, and a fortiori should they be tried in the same suit.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; that the reconventional demand set up by the defendant, be reinstated, and that this case be remanded for a new trial; the plaintiff and appellee paying costs in this court.