Opinion
04-01-1851
BERNARD v. MULLOTT ET AL.
APPEAL from the District Court of the Fourth Judicial District, where judgment was rendered in favor of the plaintiff. The cause was tried before the District Judge without a jury. At the trial the defendants proposed to give evidence of a certain demand which they claimed to have against the plaintiff, as a set off, or by way of reducing the amount of the plaintiffs recovery. This evidence was objected to on the ground that there was no allegation in the answer setting up such a claim, and the District Judge refused to allow the set off upon this ground, and gave judgment in favor of the plaintiff, from which the defendants appeal.
By the Court, The respondent brought his action to recover the sum of eight hundred and ten dollars for services rendered by him as a clerk in the employ of the defendants. The correctness of the demand was admitted, subject to a set off of cash advanced, which was allowed by the Court. The defendants also claimed as an additional set off, the balance due on certain promissory notes placed in the hands of the respondent, as their clerk, for collection, which exceeded plaintiffs demand.
The Court rejected the balance claimed and rendered judgment for the plaintiff; and the only question is, whether there was error in refusing to allow the same.
The defendants set off should be as distinctly stated as the plaintiffs demand; this is required by the statute. In this case no accurate description of the notes was given in the answer. A recovery could not be had on the notes thus described, because the judgment would not be a bar to another action on the same notes. The notes were given to the plaintiff as a clerk, and as such he is liable only in two events, viz: First. If he has collected and refuses to pay the same; 2d. If not having collected the money, he has converted the notes and refuses to account for the same.
There is no averment in the answer of a conversion nor of the collection of the money. And for aught that appears in the answer or testimony the plaintiff was willing to account for the notes when called upon.
We think clearly there is no error in the judgment of the Court, and it is therefore affirmed with costs.