No. 2,721 | Cal. | Jul 1, 1871
Curtis commenced this action against Sprague, the maker, and Huse, the indorser of a negotiable promissory note, made to one Thomas Dennis, as payee, and assigned by him to the plaintiff after it had become long overdue. The note fell due in Hovember, 1865, and was assigned to Curtis in May, 1869, and this action was brought shortly thereafter. The complaint, after setting out the note sued upon, admitted that certain payments had been made thereon, and concluded with a prayer for judgment for the balance.
The defendants answered, and set up a payment of two hundred dollars, which, they alleged, had been in fact made on the note, but was not credited in the complaint. As it is conceded, however, that in the judgment, which the Court subsequently rendered in favor of the plaintiff, this two hundred dollars credit was allowed in favor of the defendants, no further notice of this part of the answer need be taken.
The defendants further relied upon a counter claim, which was alleged to have existed at the time of the assignment, in favor of the defendant Huse, and against Dennis, the assignor of the note sued on. This counter claim arose on an instrument in writing, signed by Dennis, and of which the following is a copy:
“ Saeta Barbara, December 15, 1862.
“I, Thomas Dennis, defendant in the suit of Lewis T. Barton v. Thomas Dennis, Sheriff of Santa Barbara County, hereby appoint Charles E. Huse as my attorney to obtain a dissolution of the iñjunction in said action; and I hereby agree to pay him one thousand dollars as a fee for obtaining the dissolution of said injunction. Witness. my hand and seal the day and year above written.
“Thomas Deeeis.”
The plaintiff’ therefore, filed a replication to the counter claim contained in the answer, in which he set up the Statute of Limitations, that Dennis “never signed the.article of agreement set forth in the answer for the purposes as set forth in said counter claim,” and that Huse himself was interested in the dissolution of the injunction named in the obligation signed by Dennis, and that his services in procuring the dissolution were in his own behalf, and for his own benefit. On motion of the defendants the replication was stricken out. At the June term of the Court, about six months thereafter, the plaintiff, by leave of the Court, and over the objection of the defendants, filed an amended replication. This was followed at the same term by a motion of the defendants to strike out the “ amended replication,” which motion was denied. This amended replication again set up the- Statute of Limitations against the counter claim, and averred, on general terms, that the instrument on which the counter'claim was founded was obtained by Huse. from Dennis by misrepresentation of its contents; that no services were performed by Huse on behalf of Dennis in the dissolution of the injunction, ■ nor had Dennis-any interest in getting it dissolved.
When the Court denied their motion to strike out the amended replication the defendants demurred to it, and the demurrer was overruled. Hpon overruling the demurrer the Court below ordered the counter claim to be stricken from the answer, holding “ that the plea of the Statute of Limitations in the amended reply was well and properly pleaded, and that the same was effective as against the counter claim set up in the answer of the defendants.” The
We think the Court erred in striking out the counter claim, so called, from the answer. There was no motion before the Court to strike it out, and the demurrer to the replication was not equivalent to such a motion.
We are not to be understood as determining the sufficiency of the defense interposed in this case. Its consideration involves several important questions not argued before us—at least not on the part of the respondent.
Is the agreement of Dennis to pay Huse one thousand dollars a counter claim against Curtis within the second subdivision of section forty-six of the Practice Act? If it be really a counter claim, and had exceeded the amount due on the note in suit, could judgment be rendered against Curtis for the balance owing by Dennis, under section one hundred and seventy-six and section one hundred and ninety-nine of the Practice Act? Supposing the demand against the defendants to be joint, must not the set-off, to be available at law, under section five, be one existing in favor of the defendants jointly, as was held in Warner v. Barker, 3 Wend. 399, and Banks v. Pik., 15 Maine R. 268? Though Curtis received the note over due, is it in his hands subject to the collateral claim here interposed, or does not the rule confine the defense to some matter connected with the note itself, such as payments, want or failure of consideration, etc., according to the doctrine of Burrough v. Moss, 10 B. & C. 558; Whitehead v. Walker, 10 Meeson & Welsby, 695; Gullett v. Hoy & Orten, 15 Mo. R. 399? These and other important questions arise in the record, but they have not been argued before us. We are not to be expected to perform the duties of counsel.
The judgment is reversed and the cause remanded, with
Mr. Justice Sprague did-not express an opinion.