By the Court.
delivering the opinion.
The only reason stated in the bill of exceptions for the rejection , of the proposed evidence, is, that the effect of it would be to alter and add tо the written agreement. This •reason applies only to so much of the evidence as went to show a verbal contract apportioning to these particular three notes, as their special and peculiar consideration a certаin .part of that which the writing states as the general consideration of all the notes. That part of the evidence was properly rejected, but there wаs another portion which went to show, not a contract, but material facts. The writing evidences that Henderson had sold to Lufburrow his interest in their common business, embracing “all things.” What were “all things,” or what was any one of them? The writing gives no information on the point, and if the particulars, not of the contract, but of the property which falls within the terms of the contract, cannot be shown by parol proof, then this instruments and all other instrument which convey by terms of generаl description, are not worth the paper on which they are written. They are snares, and not contracts; for while they prove nothing themselves, they yet withhold the party who takes them from proving anything by other means. “All things” were the consideration of all the notes, and the jury had to inquire of what these things consisted, what ones of thеm had failed, and what was the proportionate value of such as had failеd. Whether or not there was a business stand and run of custom of amounting to an item of vаlue, and if so, what proportion that item bore in value to the other items cоmposing the general consideration, were matters to -be ascertainеd in arriving at any conclusion as to a failure of consideration and the extеnt of it, and matters
2. It was attempted in the argument to justify the exclusion of this last named evidence and all the rest of it, upon the ground that the defendant cannot avail himself of thеse facts as a defense to this action, but must bring an action of his own for a breаch of the agreement by the plaintiff. Cases there are which support such аn idea, but they are outweighed by the strong reasons which have embodied themselvеs injthe comparatively modern doctrine of recoupment, which is but a liberal and beneficiеn! improvement upon the old doctrine of failure of consideration,. It loоk sthrough the whole contract, treating it as an entiety, and treating the things done, and stipulated to be done on each side, as the consideration for the things done, and stipulated to be done, on the other. When either party seeks redress for the brеach of stipulations in his favor, it sums up the grievances on each side, instead of the plaintiff’s side only, strikes a balance, and gives the difference to the plaintiff, if it is in his fаvor. It has not yet been carried so far as to give the defendant the difference which may be found in his favor, because he has not sued, and the statute of set-оff does not apply to such a case. The statute ought to be made to apply, and then the doctrine would be complete in its symmetry and in its equity. The statement of it commends it to every lover of justice. The defendant in the case before us only asked that the plaintiff’s stipulation to refrain from opposi- „ tion to him, might bе valued by evidence, including the plaintiff’s own assertions upon the point, and that he might be allowed for the breach of it, a proportional abatement from his stijmlation to pay the notes. We think he was entitled to his demand. Judgment reversed.