17 Abb. Pr. 99 | N.Y. Sup. Ct. | 1863
Lead Opinion
The agreement of April 19th, 1845, was a full and valid discharge to the defendant from all personal liability to the plaintiff, on the obligation therein recited, except for the balance of $3,352.20, which was to be considered as the amount due May 1,1845.
The transaction proven by the receipt of Oct. 23d, 1846, prima facie discharged that balance.
The plaintiff was correct in his practice by commencing his action upon the bonds of the defendants, and not upon the agreement of April 19th, 1845, or for the purpose of setting-aside the receipt of Oct., 23d.
Under the system of pleading established by the Code of Pro • oedure, no reply is required to an answer setting up payment, or accord and satisfaction, or any other matter, unless it constitutes a counter-claim.
Formerly, a reply would have been necessary to a plea of payment or of accord and satisfaction, setting up a denial or whatever matter existed which constituted an answer to the plea. • But no system of pleading, either under the Code or before it, required a plaintiff, in a common-law action, to set up in his complaint any matter which the defendant might by possibility urge as an answer to the claim, or to show in the com
In the present case, the defendant knew of what the evidence consisted, to make out his defence; and he cannot pretend to be surprised, when he is required to be prepared at the trial with all the testimony necessary to maintain its validity, in case it should be assailed.
The judge erred at the trial, in excluding the evidence offered to prove that the transaction mentioned in the receipt of Oct. 23d, 1846, was fraudulent or void as against the plaintiff, or that it had been rescinded. It may be true, as the defendant insists, that the evidence offered would not amount to a full answer to his defence; but assuming the most 'favorable light of the case for him, the evidence must be admitted and considered, before its value can be ascertained. The evidence offered constituted a full answer to the defence arising out of the transaction of Oct. 23d, 1846, and the questions addressed to the defendant while on the stand as a witness ought to have been admitted. Should the plaintiff fail in establishing that he acquired no title to the land in Illinois from the defendant, or that the defendant, in fact, afterwards rescinded the alleged settlement, the defence would remain unimpaired ; but the value of the evidence cannot be considered now, because the plaintiff has been deprived of an opportunity to bring it before the court.
There must be a new trial, with costs to the plaintiff, to abide the event, and the judgment now entered must be reversed.
Concurrence Opinion
I concur in the result, that the judgment
should be reversed and a "new trial ordered.
Concurrence Opinion
I concur.
