Opinion
Department Two
Appeal from a judgment in the Third District Court, County of Alameda. McKee, J.
The action was brought against a principal and sureties on a bond. All the defendants joined in an answer, which consisted of a series of denials on the part of all the defendants, and embodied a statement of a set-off on the part of the principal. The averments of this portion of the answer were made by the principal alone. The plaintiff demurred, and the demurrer to that portion of the answer pleading the set-off was sustained. Thereupon certain of the defendants, but not the appellant, filed an amended answer. The plaintiff had judgment, and one of the sureties appealed.
COUNSEL
The general rule seems to be, that, whenever the plaintiff's demand is a matter of computation, a set-off of this nature may be pleaded by the principal, and will inure to the benefit of the sureties, although they could not, if sued alone, avail themselves of the defense. (Springer v. Dwyer , 50 N.Y. 19; Concord v. Pillsbury , 33 N.H. 310.)
McElrath & Eells, for Appellant.
H. A. Leake, and James C. Martin, for Respondent.
The appellant is not in position to complain ofthe ruling on the demurrer. It is not appellant's cross-complaint. He did not join in making it, and he did not plead or rest his defense upon any of the matters stated in it. The cross-complaint was the separate pleading of the principal defendant, and if any error was committed by the Court in sustaining the demurrer, he alone can take advantage of it. If he is satisfied with the order of the Court, the appellant cannot object.
OPINION The Court:
There is no error in the case as presented in the transcript. Conceding that any one of the sureties might have had the benefit of the set-off pleaded by their principal, if they had united with him in pleading it, neither of them did so unite. The principal did not appeal. Only one of the sureties appealed, and as he did not unite in making the defense in the Court below, he cannot be heard in relation to it here.
Judgment affirmed.