O'Connor v. American Iron Mountain Co.

The opinion of the court was delivered, January 7th 1868, by

Read, J.

This suit was brought by the plaintiffs against the defendant, on an indebtedness arising from sales and delivery of iron-ore to said defendant by said company, who filed an affidavit of claim and bill of particulars claiming a balance due them of $2660. On the 9th of April 1866, an affidavit of defence was filed, denying expressly that the defendant ever made any purchases of iron-ore from the plaintiffs except to the value of $1000, which was fully paid for, and for which he holds the plaintiffs’ receipts as of the following dates: — May 9th 1861, for $500; June 30th 1861, $500.

Affiant further said that the alleged accounts of all the residue of said iron-ore, was purchased by defendant from Cheautau, Harrison & Yallé, who sold it to defendant as their own property, and all of which has been accounted and paid for except about $559, a full statement of which has been rendered to defendant’s vendors, and it is denied that the bill of particulars is taken from plaintiffs’'books of original entry.

This affidavit, if the facts were proved on the trial, defeated the plaintiffs, and on the 30th April the counsel entered into an agreement, the true construction of which decides whether the court belowr were right or wrong in their principal ruling against the defendant.

It was agreed the above affidavit should be withdrawn, and defendant should cause to be filed an affidavit on the merits as to the disputed item in defendant’s account rendered (which must refer to the statement rendered to defendant’s vendors, Cheautau, Harrison & Vallé, mentioned in said affidavit), “ touching the raising of defendant’s barge, and the cargo of Cheautau, Harrison & Vallé in said barge, and upon the filing of an amended affidavit of defence on behalf of defendant, it is agreed that all legal or equitable defences to said plaintiffs’ claim that defendant may have, as against the plaintiffs, or as against the said firm of Cheautau, Harrison & Vallé, as to said items, are to be received in evidence in this case, as if the same had been instituted by Cheautau, Harrison & Vallé. It being distinctly agreed that all claims, defences and business transactions between James O’Con-nor and the Iron Mountain Company, James Harrison president thereof, and Cheautau, Harrison & Vallé, are to be' considered respected and admitted as one and identical, touching the matters in this action for which suit is brought.” This agreement does not appear on the record, but an affidavit and supplemental affidavits of defence were regularly filed, directed to the points specified in the same.

Upon the trial of the case, the defendant offered to prove an agreement between plaintiffs and defendant, that no interest was to be charged on their claim. To this the plaintiffs objected, that under the affidavits filed by defendant. the correctness of the plaintiffs’ claim as filed, including interest, is admitted under the 5th rule of this court, and that defendant cannot now be permitted to contradict such admission, and is not admissible under the pleadings in the case ; and the court sustained the objection and sealed a bill of exceptions.

The 5th rule which is here referred to, provides that such items of the claim and material averments of facts as are not directly traversed or denied by the affidavit of defence, shall be taken as admitted. The bill of particulars is correct; but it is the charge of interest which is incorrect, because the agreement was that no interest was to be charged on their claim. Independent of the 5th rule, this evidence was clearly pertinent, and should have been admitted. It will be recollected that the plaintiffs’ affidavits and bill of particulars were on file and before counsel when the agreement was framed, and that the affidavit of defence was only required as to disputed item in defendant’s account rendered, and not one step beyond; and it is agreed “ that all claims, defences and business transactions” between all these parties “ are to be considered, respected and admitted, as one and identical, touching the matters in this action for which suit is brought.” If there is any meaning in this language, it is certainly intended to dispense with the 5th rule and all technicalities, and to allow all defences to be made which are legal or equitable. This defence is not to the principal, but to the interest only, and we are not disposed to put a restrictive meaning on large and liberal words so as to exclude a just defence.

The foreign attachment was properly rejected. The deposition of one of the real plaintiffs, taken under a commission issued by and on behalf of the defendant, and filed in the case, was offered in evidence by the plaintiffs, objected to, and received. Such a deposition of a disinterested witness would clearly have been evidence for either party : 1 Grreenl. Ev., § 324, and notes ; Linfield v. Old Colony Railroad Corporation, 10 Cush. 570; Calhoun v. Hays, 8 W. & S. 130; and we think the case of Seip v. Storch covers the present case.

Judgment reversed, and venire de novo awarded.