Opinion
Appeal from the District Court of the Seventh Judicial District, County of Contra Costa.
Action on a promissory note. The defendant's answer, filed May 5th, 1854, admits the execution of the note, and avers that it was given for the plaintiff's interest in land held jointly by the parties; it also avers that plaintiff and defendant were jointly interested in cattle purchased by them as partners and brought across the plains by plaintiff; that plaintiff had deceived defendant, and pretended that one half of the cattle brought across by him belonged to other parties, and in the division of the stock had taken away three quarters of them, whereas one half belonged in fact to defendant; and denies any indebtedness, and prays for an account, etc.
On motion of plaintiff, all the answer, except that portion admitting the execution of the note and denying the indebtedness, was stricken out. Judgment was rendered for plaintiff for the amount due on the note. Defendant appealed.
COUNSEL
The answer of the defendant contained a statement of new matter constituting a defense and counter claim within the purview of secs. 46 and 47 ofthe Practice Act; and it was error to strike out the answer, and as a consequence, the case established, entitling the defendant to the relief by him sought. See Prac. Act, secs. 46, 47; New York Code, secs. 149, 150; Silliman v. Eddy, 8 How. Pr. R. 122; Van Sanford's Pleadings, 298, 301; Dewey v. Hoag, 15 Barb. R. 365; Haine v. Baker, 1 Selden's R. 357, Hunt v. Farmers' Loan and Trust Co., 8 How. P. R. 418; Dobson v. Pearce, 1 Abbot's R. 103; same case, 2 Kernan's R.; N.Y. Code, secs. 69, 150, 274; Prac. Act, secs. 1, 49, 145; Willard's Eq. Ju. 354, 355; 1 Whit. Prac. and Plead. 506; Gage v. Angell, 8 How. Pr. R. 335, 337; 1 Story's Eq. Ju., Sec. 662 et seq.; Story on Partnership, secs. 2, 3, 5, 6; Baxter v. Hozier, 5 Bing. R. 288, (35 Eng. Com. Law R. 115); Black.'s Com. (Chitty's) vol. 2, p. 132; Prac. Act, secs. 175, 176; 2 Green.'s Ev., Sec. 642; Thayer v. White , 3 Cal. R. 228; Truly v. Manser, 5 How. U.S. Sup. R. 141.
I desire to call the particular attention of the Court to the fact that the complaint was filed on the 25th of April, 1854, and that the answer was filed May 5, 1854. This was beforethe word " counter-claim" was omitted by the amendment of the Act in 1854.
John Currey, for Appellant.
H. Mills and H. Allen, for Respondent.
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
The order of the Court below striking out a portion of the answer was proper, as it was no defense to the action.
It is not alleged that the note sued upon was given in payment for a division of the cattle; on the contrary, it appears that it was given for the defendant's interest in the ranch and money expended in bringing the cattle across the plains.
If the plaintiff has been deceived in the division of the stock, as he alleges, he should file his bill for a discovery and account; but as such division had nothing to do with the consideration of the note sued on, it cannot be set up as a counter claim, or equitable defense to this action.
When this case was here before, this point was not made, and the judgment was reversed on account of the insufficiency of the referee's report.
Judgment affirmed.