Hart v. Cooper
Synopsis
Pboof of Counteb-Claim: Without Pleading It.—If the payee of a promissory note assigns it after it falls due, and “the payor, without knowledge of the assignment, and after it is made, has dealings with the payee, in which they become mutually indebted to each other, and in an action by the assignee, on the note, the payor proves as a set-off, the amount the payee became indebted to him in said dealings, the assignee may prove, as a counter-claim to the set-off, the amount in which the payor became indebted to the payee, in said dealings, without pleading it.
Pboof of a Cboss-Dbmand.—When there has been no opportunity to plead ■ a cross-demand, it may be proved without pleading it.
By the Court: The action is upon a promissory note made by the defendants to one Mead. It appears from the bill of exceptions that, after the note was indorsed and transferred by Mead, but before the defendants had knowledge of that fact, Mead and the defendants had certain business dealings by which he became indebted to them in the sum of $235 80, and they to him in the sum of $200. The defendants pleaded their account as a set-off to the note, and when the plaintiff sought to introduce evidence to prove the indebtedness to Mead, and that there was really only a balance of $35 80 due from him, the defendants objected, on the ground that the evidence was irrelevant and incompetent, because the plaintiff had not pleaded this indebtedness. The Court overruled this objection and admitted the evidence, and this constitutes the only error assigned in the case.
[79]There was no error in the ruling. The two demands were cross - demands, and must be deemed compensated, so far as they equaled each other. The plaintiff had no opportunity, and was, therefore, not required to plead the demand in favor of Mead.
Judgment and order affirmed.
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