Fisher v. Ball

Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

The court below rejected the offer of evidence embraced in the first assignment, upon the ground that no notice had been given of special matter. The offer was made under the plea of non assumpsit, and no other objection was made to its admission. The evidence was clearly relevant, and required no notice of special matter. It referred to matters growing out of the dealings .of the parties, and was part of the res gestee. The defendant stood charged with a certain number of mowers and reapers sent to him by the plaintiffs for sale upon commission. The defence was that all of the machines not sold and accounted for, had been reshipped upon the order of plaintiffs. This was a good defence if made out, and the rejected evidence tended to prove it. We think it was admissible under the plea of non assumpsit. This is a very broad pica, and by it the defendant puts his antagonist upon proving his whole case, and entitles himself to give in evidence anything which shows that, at the time the action was commenced, the plaintiff, ex cequo et bono, ought not to recover: Gaw v. Wolcott, 10 Barr 43; Beals v. See, Id. 56. Nor do we think it material that the offer referred to one machine that had been reshipped since the commencement of the suit. It appears, by the statement of the plaintiffs, that upon the trial a credit was given for certain machines shipped since suit brought, and no objection was made below to the admission of the evidence upon this ground.

The evidence referred to"in the second and third assignments was properly rejected. It would have been competent to show the articles were shipped. But the evidence offered did not amount to such proof. The mere production of the books of the railroad company, with the shipper’s receipt, did not prove a shipment. They might have been made evidence, if the shipping clerk or other proper person, had been called for that purpose. But standing alone, and unsupported and unexplained, they were not of themselves competent to affect third parties.

Judgment reversed, and a venire facias de novo aw'arded.