Teuber v. Schumacher

Waterman, J.

Appellees having caused judgment to be entered against appellant upon his note for $150, he was permitted to come in and defend. Thereupon he filed a plea of the general issue, and a trial was had. Upon the trial it appeared that appellant, a carpenter, had done work for appellees in the erection of certain houses, and had also obtained from them the mill work for other buildings. Appellant testified that he gave the note at a time when the accounts between him and appellees were unsettled, and upon their promise that when a settlement and an adjustment was had, the note should be given back.

After the note became due, appellees (upon an order ap-. pellant gave to them) collected $625, due him from a third party. Appellant insisted that an adjustment of the accounts would show th'at he owed them nothing, and desired to introduce the entire accounts. The court refused to permit this, seemingly because of some affidavit not shown in the record, in Avhich appellant had stated that the note had been paid in cash.

JN"o terms were imposed when appellant Avas let in to defend; it was therefore his right to offer any evidence permissible under his plea of the general issue. [Neither failure nor want of consideration could, under the statute of this State, be shown under this plea, but payment might. Appellees had, after the maturity of the note, received on account of appellant more than the amount of the note; AArhether appellant Avas entitled to have this money applied upon the note, depended upon the state of the accounts between the parties; he should therefore have been permitted to show and have examined such accounts. The court in letting him in to defend, might have imposed terms, but not having done so, it could not restrict him to a mere showing that the note had been paid in cash. Such Avas not the • issue presented by the pleadings. The judgment of the Superior Court is reversed and the cause remanded.

''Reversed and remanded.