168 P. 38 | Mont. | 1917
delivered the opinion of the court.
The complaint in this instance is the usual form employed in an action to recover upon a promissory note. The answer admits the execution and delivery of the note and attempts to set up forty-five separate counterclaims, for amounts aggregating $18,432.50. Of this amount $112.50 was claimed for moneys paid out by the defendant for the plaintiff as court costs and other necessary expenses. Upon the trial two of the alleged counterclaims, each for $1,000, were excluded from the jury’s consideration. A verdict was returned in favor of defendant for $4,021.18, and from the judgment entered thereon this appeal is prosecuted.
It is necessary to consider but one of the contentions made
If the full amount of every counterclaim be admitted, and interest computed upon the several sums paid out for costs and expenses and added thereto, the total of defendant’s claims cannot equal $19,000 — more than $3,000 less than plaintiff’s admitted claim. Excluding the amounts in the two counterclaims withdrawn from the jury, and deducting from the balance the $2,000 admitted by plaintiff and credited upon the note, the utmost that defendant can maintain as an offset to the admitted claim of plaintiff, is less than $15,000. Viewed in any possible light, plaintiff was entitled to a judgment for some amount, and under ordinary circumstances we should determine the amount, and direct that judgment be entered accordingly; but appellant concludes his brief as follows: “Upon the con
Reversed and remanded.