Littell v. Shockley

27 Ky. 245 | Ky. Ct. App. | 1830

Chief Justice Robertson,

delivered the opinion of the court.

Shockley sued EÍiza Littell, on a promissory note. She pleaded payment with leave, to prove any fact which would be ¡admissible underany valid issue.

On the trial she exhibited accounts exceeding the note in amount, and purporting to have accrued after its date. She proved facts conducing, in some degree, to establish the justice of the accounts. It was proved that Shockley had drawn off an account against her; but-his account was neither exhibited nor proved.

The circuit court decided that the accounts of Mrs. Littell and all the testimony in relation to them wereiii-admissible; and thereupon the jury found a verdict f°r Shockley, for the whole amount of his note. She prosecutes this writ of error to reverse the judgment on this verdict.

A demand for which indebi - tatwassumpsit be*pleaded as a set-off to a debt due by ?ote’ Hoggin and Monroe, for appellant; Sanders and Bibb-, for appellee.

A demand may be pleaded as a set off, for which indebitatus assumpsit would he. Whether such action could be maintained on all the accounts or not,isimma-h^terial. It could certainly be maintained on account A, if it was liquidated by the parties, as the jury had a right to infer that it had been, it is not necessary to decide whether indebitatus atsumpsit would lie on the other accounts.

If any of the accounts would have been admissible under a plea of set-oif, and if there was any evidence tending to prove them or any part of them, the court erred in rejecting them and the testimony offered for establishing them. There was evidence. Its effect should have been left to the jury for their consideration. Although it was somewhat general and inconclusive, it was applicable and legal; and therefore ought not to have been excluded.

Wherefore, the judgment is reversed, and the cause remanded for a new trial.