p. 736Halcyon Skinner, Resp't, v. Harriet S. White, App'lt.(Supreme Court, General Term, Second Department,Headnote
Pleading—Counterclaim.The complaint alleged the execution and delivery of a bond by defendant; that it was wholly unpaid, and demanded judgment for the entire amount. It was amended so as to omit the allegation that no payments had been made. The answer denied the bond; averred payment by the amount of bills receipted by defendant’s husband, and set up a counterclaim for the same sum. It appeared that the bond was given for a debt of the husband, and did not charge defendant's separate estate. It also appeared that defendant had sold goods to plaintiff, and that her husband had receipted the bills, without receiving any money or other consideration except a credit on his old debt, which was not shown to be authorized by defendant. There was no direct proof of application on the debt. Held, that defendant had a right to set up as many defenses as she had, and that the plea of payment did not call for a refusal to give a judgment for the proven counterclaim.
Appeal from so much of a judgment dismissing the complaint as denied to defendant a judgment on her counterclaim.
James M. Hunt, for app’lt; Ralph E. Prime, for resp’t.
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
p. 737not 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 so 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.
Barnard and Pratt, JJ., concur.