18 Barb. 29 | N.Y. Sup. Ct. | 1853
It seems to me the evidence was improperly excluded. Under a general allegation of indebtedness, the plaintiff had proved certain services rendered, and their value. It was surely competent for the defendant, under a denial of such indebtedness, to prove that he never incurred nor owed the debt. He had a right to prove that the services were rendered as a gratuity, either as to the whole or in part; or that the plaintiff had himself fixed a less price for their value than he claimed to recover. The services being proved, the defendant might show that they were rendered not for him, but on the credit of some other person; or that the plaintiff himself undertook to run the risk of the litigation. It was not an attempt to show an extinguishment of the alleged indebtedness by payment, release or otherwise ; but it was an offer to show that such indebtedness never existed. The defendant was at liberty to prove any circumstances tending to show that he was never indebted at all, or that he owed less than was claimed.
Suppose, under such a general complaint, a merchant had proved he had sold ten yards of cloth worth five dollars a yard; can it be doubted but the defendant would have been at liberty to prove that when he sold it he fixed the price at three dollars, a yard; or that he gave it to the defendant; or agreed to look to some other person or friend for his pay ? I have no doubt it would have been competent in this case for the plaintiff to have proved that he had agreed on a certain sum as compensation for the whole or for any portion of the services rendered; and I cannot see why it was not equally the right of the defendant
The pleader who drew the complaint in- this case has made use of the old form of a general count in assumpsit; and under such a count, for goods sold and services rendered, it was always competent for the plaintiff to prove, and of course for the defendant to controvert, that certain prices had been agreed upon between the parties. The counsel for the plaintiff argues that this was like an action of assumpsit upon a note, where, under the late practice, a partial failure of consideration could not be shown under the general issue, without notice, (2 Coms. 157;) or where, in assumpsit by an attorney against his client, a partial defense was claimed on the ground of the plaintiff’s negligence in conducting the suit; in which case the same rule as to pleading prevailed. (11 John. 547. 9 Cow. 57.) But those cases are not analogous ; for in neither of them was the question in controversy what the contract was. Both defenses rested on matters subsequent to the contract. In this case the only question involved was what was the contract, and that was the question directly in issue.
For the error in excluding this evidence the judgment entered on the report of the referee must be reversed, and a new trial awarded.
Watson, Parker and Wright, Justices.]
