14 Mont. 359 | Mont. | 1894
The sole question involved in this case is whether the trial court erred in permitting defendants, by amendment of their answer, to plead a counterclaim against the demand of plaintiff, which counterclaim matured after
With scarcely any conflict of opinion, it is held that the counterclaim thus pleaded must be one existing and matured for action in favor of the party asserting the same at the time the action was commenced wherein such counterclaim is sought to be pleaded. This is held in several California cases, where the subject appears to have been carefully considered, under like provisions of statute, from which state, no doubt, our statute on this subject was borrowed. Not only so; such holding is supported by the great weight of reason, as will be found expounded in the following cases. (Paige v. Carter, 64 Cal. 489; Gannon v. Dougherty, 41 Cal. 661; Jeffreys v. Hancock, 57 Cal. 646; Trafford v. Hall, 7 R. I. 104; 82 Am. Dec. 589; Lee v. Lee, 31 Ga. 26; 76 Am. Dec. 681; Smith v. Washington Gaslight Co., 31 Md. 12; 100 Am. Dec. 49; Hayes v. Hayes, 2 Del. Ch. 191; 73 Am. Dec. 709; Smith v. Ewer, 22 Pa. St. 116; 60 Am. Dec. 73; Shepherd v. Turner, 3 McCord, 249; 15 Am. Dec. 631; Gregg v. James, Breese, 143; 12 Am. Dec. 152; Hill v. Kroft, 29 Pa. St. 188; Speers v. Sterrett, 29 Pa. St. 194; Lyon v. Petty, 65 Cal. 322; Bliss on Code Pleading, § 369, et seq.)
It appears that upon the trial defendants succeeded in establishing their counterclaim to the satisfaction of the jury, and the same was offset against the demand of plaintiff, and plaintiff was given judgment for the amount of his demand over and above such offset. We are satisfied that this was error, and that therefore the judgment must be reversed and a new trial ordered. This court cannot direct judgment, for the reason that there was a conflict in the testimony, and there is nothing
Reversed.