| Ill. | Sep 15, 1876
delivered the opinion of the Court:
Whether the court abused the discretion with which it was invested, in refusing to allow appellant to plead over, after - the demurrer was overruled, depends entirely, in our opinion, whether the appellant was thereby deprived of interposing a meritorious and substantial defense to appellee’s cause of action, which he was ready and offered to interpose without material delay to the court.
If the defense proposed to be made did not go to the merits of the case, but was not well taken, or was purely technical in its character, we are aware of no authority which would warrant us in holding that the court had abused its discretion in refusing to listen to it.
Appellee having filed an affidavit with his declaration, in conformity with the 37th section of the Practice Act, E. S. 1874, p. 779, to entitle appellant to plead to the declaration, it was incumbent on him to accompany his plea with an affidavit of merits.
In the present instance, the affidavit accompanying the plea proposed to be filed, undertakes to set up the facts constituting the defense, and, as we have held in another case at the present term, if those facts, as thus stated, do not necessarily present a defense, the court is warranted in holding the affidavit insufficient, and in refusing to allow the plea to be filed.
There is no dispute as to the amount actually due from the appellant to the appellee, on the promissory notes described in the declaration, which embody appellee’s claim. The affidavit of appellant concedes this amount to he as stated in the affidavit of appellee, but he claims a technical defense that because the principal note was given for a larger amount than was agreed by the parties to be due, it is void and inadmissible as an instrument of evidence. We are not inclined to indorse the correctness of this position. The question would seem only to go to the consideration of the note partially, and in such cases it is well settled there may be a recovery on the instrument pro tanto. But if the position were correct, it would only prevent a recovery on the special count in which that note is declared on, and' there might still be recovery under the common counts, of the amount actually due, about which, as before observed, there is no disagreement between the parties.
The only question, then, is, whether the proposed set-off of $500 is shown by the affidavit of appellant to have legal merit.
It is very clear, it can not be sustained as originating from damages sustained by reason of a breach of covenant, because neither the existence nor breach of a covenant warranting-such a claim is shown. Willets v. Burgess, 34 Ill. 494" date_filed="1864-04-15" court="Ill." case_name="Willets v. Burgess">34 Ill. 494; Vining v. Leeman, 45 id. 246; DeForrest v. Oder, 42 id. 500.
Treating the claim as originating in a new and independent contract, there seem to be several objections not removed by the language of the affidavit. It is not shown there was any sufficient legal consideration for the promise of appellee. It does not appear that appellant accepted the offer of appellee, and, in good faith, expended his time and money upon the faith of it. Nor is it distinctly and positively alleged that the amount of the proposed off-set was then due and unpaid, .which has been held essential in a plea of set-off. DeForrest v. Oder, supra. And we are of opinion, where the party undertakes to set up, by affidavit, the facts relied on to sustain his plea, he must be held to the same strictness in matters of substance as in pleading.
We are, therefore, of opinion the court did not abuse its discretion, in refusing to ■ allow the. proposed defense. The party has been denied no substantial defense; but even if he should have a meritorious claim, which, thrbugh inadvertence, he has failed to properly set up, he may sue upon it in an independent action.
The judgment is affirmed.
Judgment affirmed.