p. 383(Supreme Court, General Term, Second Department.Headnote
Counterclaim—Setting up Matter Pleaded as Payment.Where, in an action on a bond, the answer denied the bond, averred payment in goods, and also set up a counterclaim for the same goods, and the proof showed a delivery of the goods, and the invalidity of the bond, defendant was entitled to an affirmative judgment on the counterclaim.
Appeal from judgment on report of referee.
Action by Halcyon Skinner against Sophia H. White to recover on a bond executed by defendant to plaintiff. Defendant pleaded payment and counterclaim for goods furnished plaintiff. From a judgment dismissing both the complaint and counterclaim, defendant appeals.
Argued before BAENAED, P. J., and DYKMAH and PEATT, JJ.Eudd, Hunt & Wilder, (James M. Hunt, of counsel,) for appellant.
E. E. & A. J. Prime & Burns, (Ealph E. Prime, of counsel,) for respondent.
This action is brought to recover upon a bond executed by the defendant for $1,500, given on the 14th of February, 1877. The evidence showed upon the trial that the bond was given for a debt of her husband, and did not charge the separate estate of the obligor, and that, therefore, the bond was not binding on the defendant, and the complaint was dismissed. The plaintiff does not appeal. It was proven on the trial that about the 1st of May, 1880, the defendant did enter into a separate business of her own, and that her husband was made by her a general agent and manager of the business. While the defendant was conducting her business, she sold and delivered to the plaintiff goods to a large amount. Her husband receipted the bill, and received no money or other consideration therefor other than a credit on his old debt to the plaintiff. The referee refused to give her judgment against the plaintiff therefor, and the question presented on this appeal is whether this was erroneous. There was no direct proof that the goods sold plaintiff were applied on the old debt by the defendant’s assent, or even with her knowledge. The parties derive such assent from the pleadings. The plaintiff complains that the bond is wholly unpaid, principal and interest. The complaint is amended
p. 384so as to leave out the clause that no payments have been made on the bond, and demands payment of the entire amount. The answer denies the bond, avers payment on it by the exact amount of the bills receipted by her husband, and sets up a counterclaim for the same sum, and asks an affirmative judgment. These pleadings, in the absence of proof on the trial, leave the parties to their rights as they shall appear on such trial. It appeared that the bond was invalid. It did not appear that the defendant authorized her husband to apply her property to the payment of his debts. It did appear that the plaintiff had her property, and that it was not paid for. The plaintiff’s original pleading under oath denied any payment. The amended pleading implies that no payment was made. The defendant denied bond, and asserted payment and counterclaim. The defendant had the right to plead as many defenses as she had, and, if she pleaded payment and counterclaim, and the proof showed counterclaim, there is no reason because of the- plea of payment which calls for a refusal to give a judgment for a proven counterclaim. The judgment, so far as appealed from, should be reversed, and the case sent to the circuit for trial. The proof shows that there is no long account involved, and the sole question is whether the goods sold were applied on the bond by the defendant’s assent; costs to abide event. All concur.