Union Mercantile Co. v. Jacobs, Sultan & Co. , 20 Mont. 270 ( 1897 )

Pemberton, C. J.

The principal assignment of error by appellant is the action of the trial court in permitting the defendants to prove that the plaintiff had in its possession, when it commenced this suit, certain book accounts belonging to the defendants Jacobs, Sultan & Co., which it is claimed were of sufficient value to pay off and satisfy plaintiff’s judgment, and which plaintiff had not accounted for or given credit to Jacobs, Sultan & Co. The appellant contends that it was error to admit this evidence, because neither payment nor a counterclaim was pleaded by the defendants. The evidence did not tend to prove a payment. It tended to show facts that might constitute a counterclaim. Was the action of the lower court, considering the character of this action, erroneous ?

The suit is an equitable one, seeking an equitable setoff of plaintiff’s judgment against the judgment recovered by Jacobs, Sultan & Co. against it, and assigned to Hyman Jacobs. The plaintiff alleges that there is a balance due on its judgment. It became necessary for it to prove that a balance was due before it could ask for the relief prayed for in its complaint. It devolved upon the plaintiff to show that it was entitled to the equitable relief demanded. The defendants did not plead a counterclaim, nor did they ask for any affirmative relief against the plaintiff. The evidence was offered to show that upon a proper settlement of accounts the plaintiff was not entitled, in equity, to the relief sought by this action against Jacobs, Sultan & Co. The court did not adjudicate that Jacobs, Sultan & Co. had paid the plaintiff's judgment, or that they were entitled to have judgment for the counterclaim which the evidence tended to establish. The court merely held that under the facts and circumstances of the case the plaintiff was not entitled to the equitable setoff prayed for in this action, leaving the parties to enforce their respective judgments and rights in proper actions for that purpose. We see no error in the action of the court in this respect.

The determination of this assignment, which we consider decisive of the case, renders it unnecessary to discuss other questions presented by the record. The judgment and order-appealed from are affirmed.

Affirmed.

Hunt and Buck, JJ., concur.