| Mo. | Jul 15, 1855
delivered the opinion of the court.
No brief was filed in this cause, and in the absence of all oral argument, we are left to the assignment of errors, in order to ascertain of what complaint is made to the detriment of the appellant, who was plaintiff below.
The error specifically assigned is the refusal of the court to give the second, third, fourth, fifth, seventh and eighth instructions asked by the plaintiff. The instruction numbered two was properly refused, as nothing is clearer than that the subject matter of an original suit may be used as a set-off by the plaintiff in that suit during its pendency, when he is sued by his adversary. If it is a final judgment, it is a set- off as a judgment. (Chitty, 553.) The third instruction would have effected nothing for the plaintiff. He obtained the full benefit of the set-off alluded to by it, and there was no question but that all the petitions, both original and amended, referred to but one and the same indebtedness, and that the due bill was only evidence of the debt mentioned in the original petition. There is no pretence that the defendant, Todd, owed more than one debt to the plaintiff’s testator. The objection to the fourth instruction is sustained by the observations made on the third.
There was no error in the refusal to give the fifth instruction. The set-off of the defendant had been pleaded, both as an original demand, as it stood before it was matured into a judgment, and as a judgment. It stood admitted in both these forms, as the third amended answer in the supplemental record before us was not replied to ; and as the defendant got the benefit of it in only one of the forms in which it was pleaded, the plaintiff has sustained no injury. The objection to the seventh instruction is shown by what has been said in relation to the third. Moreover, a set- off was pleaded to the amended petition, in which the due bill was set out, which was not replied to, and therefore stood admitted.
The eighth instruction does not contain a correct proposition. If the plaintiff’s intestate converted a note to his own use, there
The reading of a portion of the defendant’s answer by the plaintiff as evidence, the answer being a pleading in the cause, and read as such, gave the defendant no right to use any other parts of the answer as evidence for himself. If a defendant admits one fact and it is used by his adversary as evidence, surely that can be no warrant to him to take all the facts stated in the answer as evidence against the plaintiff. If any other portions of the answer, not read by the plaintiff, affected the sense, or explained, in any way, the portions read, he would have a right to read them ; but as to the portions which related to other facts, he would have no right to do so. This matter was considered in the case of Kritzer v. Smith, decided at this term, and the law in relation to it was then stated. But, inasmuch as the admissions contained in the answer read, were made in another answer in the cause, which was not replied to, being in relation to the set-off, the plaintiff has sustained no injury by the admission of such evidence.
The other judges concurring, the judgment, will be affirmed.