National Time Recorder Co. v. Iowa Mantel Manufacturing Co.

Mr. Justice Freeman

delivered the opinion of the court.

It is urged by appellant’s attorney that the court erred in its rulings on admission of evidence. Objection was made to an interrogatory put by appellee’s attorney whether any of the lamps furnished by appellant were defective, the ground of objection being that the question should have been not merely whether they were defective, but whether they were in accordance with the sample. The objection was overruled and appellant’s attorney preserved his exception. The witness then testified that over one-half the lamps were unfit for service or use. It is claimed by appellant that the failure of the lamps was owing, not to defective workmanship, but to inherent defects in the plan of their construction, and that for these defects appellant was not responsible, having made the lamps, as it insists, in exact accordance with the sample, as agreed. We regard the objection as well taken. The evidence was, we think, improperly admitted under the contract and raised a false issue. If the defects were in workmanship merely, this was proper evidence. But the evidence was not thus limited.

By way of defense under the plea of general issue, the attorney for appellant sought to prove special services claimed to have been rendered at appellee’s request in an effort to improve the lamp, and make it better than the sample. Appellee’s attorney objected to this and other testimony of like character as being outside appellant’s bill of particulars filed with its notice of set-off. The court sustained the objection, saying, “ I think you ought to be confined to your bill of particulars.” To this ruling an exception was duly preserved. Appellant was entitled under the general issue to introduce every matter of defense which tended to show that it did not owe appellee what the latter claimed. Appellant was not confined to the matters set forth in the notice of set-off. These matters and all others tending to show that appellant had rendered an equivalent for the $2,195 which it admitted appellee had paid, were competent under the plea of the general issue. It was only when, in addition to showing that it was not indebted to appellee, appellant sought to recover a judgment in its favor for the $1,004.05 which it claimed was due it over and above the $2,195 which appellee had paid, that appellant’s right to recover was limited by its bill of particulars. Appellee’s attorneys argue that because appellant admitted it had received $2,195 from appellee, the former’s defense could only be by way of set-off and therefore limited by the bill of particulars attached to its notice of set-off. In Schwartz v. Southerland, 51 Ill. App. 175-178, it is said : “ The plea of set-off by the defendants below did not change their right to make, under the general issue, any proof that would have been admissible if no set-off had been pleaded.”

In view of what has been said, we deem it unnecessary to consider other matters referred to by the attorneys. For the errors indicated the judgment must be reversed and the cause remanded.