Farmers' National Bank v. Hunter , 35 Or. 188 ( 1899 )

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

The notice of appeal contains some forty-nine assignments of error, but we have neither the time nor the inclination to examine and decide each one separately, nor would any useful purpose be served thereby. Many of them simply present different phases of the same questions.

1. The first ruling complained of is the refusal of the trial court to require the defendant to elect upon which of the several separate defenses he would rely at the trial. The contention is that the defendant is not entitled to set up the failure of Yee Sing & Company to perform the contract according to its terms, and also to plead the damages arising from such failure by way of recoupment or set-off. In support of this contention, counsel relies upon the case of Gove v. Island City Milling Co., 16 Or. 93 (19 Pac. 740). But that was an action to recover on a contract, and the defendant pleaded as a defense thereto the failure of" the plaintiffs to comply with its terms, and. also sought to use such failure as a ground for affirmative relief; and the court held that, in the form in which the action was brought, it had no right to plead the failure of the plaintiffs to comply with the contract, and thus overthrow their claim, aud also be allowed to recover in the same action damages for a breach thereof. But in the case at bar the matters set up are for defensive purposes alone, and under the statute the defendant has the right to set forth in his answer as many defenses as he may have : Hill’s Ann. Laws, § 73. We are therefore of the opinion that the motion was properly overruled.

2. It is next claimed that the court erred in permitting the defendant to introduce in evidence, during the cross-examination of the witness Scriber, two certain instruments of writing given to the plaintiff bank by Yee Sing & Company, by one of which the bank was appointed their agent, with power to collect and receipt for all moneys due or to become due under the contract with the defendant, and the other was addressed to the defendant, notifying him to pay all moneys due or to become due under such contract to the plaintiff bank. Both of these writings were competent evidence. The alleged assignment from Yee Sing & Company to the plaintiff was an issue in the case, and these two papers were material, as bearing upon that question.

3. It is next claimed that the court erred in allowing the jury to set off, as against the plaintiff’s claim, sums of money advanced by the defendant to Yee Sing & Company for the purchase of supplies and for the payment of laborers, without the same having been pleaded in the answer. The record shows that there was evidence given on the trial to the effect that about the time Yeé Sing & Company entered upon the performance of their contract, and long before anything became due thereunder, the defendant gave them an order on a neighboring mill company for $200 worth of flour, of which they received about $96 worth, and that he thereafter advanced to them about $700 to pay their laborers. These facts were developed on cross-examination of the defendant, and plaintiff subsequently requested the court to charge the jury that under the pleadings the payment of the $96 for flour, and the money so advanced, could not be considered as a set-off in this case against any claim of the plaintiff. This instruction should have been given. It is a well-settled rule in this state that a defendant is not entitled to prove payment without alleging it (Clark v. Wick, 25 Or. 446, 36 Pac. 165 ; Benicia Ag'l Works v. Creighton, 21 Or. 495, 28 Pac. 775, 30 Pac. 676), nor can he prove a counterclaim or set-off, or any other affirmative defense, without first tendering an issue therein in his answer. Now, there is no allegation in the answer upon this question. It alleges that, by reason of the failure of Yee Sing & Company to comply with their contract, the defendant was compelled to employ labor and pay therefor the sum of about $2,500, in order to prevent his beet crop from being an entire loss and failure ; but these allegations are not sufficient to admit evidence of payment on the contract, nor of a mere counterclaim to the plaintiff’s demand.

It is next claimed that the court erred in permitting the defendant to give evidence tending to show a failure on the part of Yee Sing & Company to comply with their contract, and the consequent damages, for the reason that there is no allegation in the answer that the defendant complied with the terms of the contract on his part, by properly plowing, seeding, or cultivating the land sown to sugar beets. But we do not understand how that question can become material as a matter of pleading in this case. It is admitted that the beets were planted by the defendant, and that Yee Sing & Company entered into possession thereof, and undertook the performance of the contract on their part; and the question presented by the answer, and sought to be litigated, is whether or not they complied with the terms of such contract, and, if not, whether the defendant was damaged thereby. The condition of the land, and the performance by the defendant of the contract on his part, may have been material on the trial, as a matter of evidence in determining whether the loss, if any, was the result of the acts of the defendant or of Yee Sing & Company, but we do not understand that it is material as a matter of pleading.

There are some other questions presented by the record, but we think we have sufficiently indicated our views upon the principal points in the case. Judgment is reversed, and a new trial ordered. Reversed.