Falkenan v. Smedley ( 1916 )

Mr. Justice O’Connor

delivered the opinion of the court.

2. Appeal and ebbob, § 1687^*—when error in striking statement of set-off from files waived. Where, after defendant’s statement of set-off is stricken from the files on plaintiff’s motion, defendant does not elect to stand by his statement, but asks for and is given leave to file an amended statement, any error in striking the statement is waived. 3. Appeal and ebbob, § 1362*—when refusal to allow filing of amended pleading not abuse of discretion. Where leave was given to file an amended statement of set-off within ten days and it was not filed until the sixteenth day and no excuse offered for failure to file it in the time set, the refusal of the court to grant a motion to file it instanter is not an abuse of discretion. 4. Set-off and recoupment, § 8*—what proper matter for set-off. In order for a claim to he proper matter for set-off, it must have arisen out of the contract sued upon by the plaintiff or if it arises out of a separate transaction, it must he for liquidated damages. 5. Set-off and becootment, § 8*—when claim not proper one for set-off. Statement of set-off examined and held not to set up a claim arising out of the contract sued upon by the plaintiff nor to be for liquidated damages. 6. Set-off and becootment, § 6*—when claim for services under implied contract not ground for set-off. A claim for services rendered under an implied contract is not proper to be allowed as set-off, where it does not arise out- of the claim sued on by plaintiff. 7. Pleading, § 153*—when defense not set up by affidavit of merits. Affidavit of merits examined and held not to allege facts constituting a defense to plaintiff’s claim.