Standish v. Chandler — 23 Wend. 511

Majority

p. 511

Standish vs. Chandler.

Headnote

A bill of particulars describing a joint amd several note made by the plaintiff and another person, as a note made by the plaintiff, is sufficient to entitle the defendant to give the note in evidence under a notice of set off.

This was an action of assumpsit, tried at the Washington circuit in June, 1838, before the Hon. John Willard, one of the circuit judges.

After the plaintiff, George Chandler, had proved his demand, the defendant, under a proper notice of set off, offered in evidence a promissory note in the following words: “ Six months from date we jointly and severally promise to pay Lucretia Harris or bearer one hundred and sixty-seven dollars and sixty-five cents, value received, with interest. South Hartford, 17th April, 1835. Samuel Standish, Jr. Charles Chandler.” The plaintiff objected to receiving the note in evidence, on the ground that it was not described in the bill of particulars which the defendant had furnished of his demand. The part of the bill which relates to the note, is in the following words: “ One note for $167, 65, dated South Hartford, April 17,1835, payable to Lucretia Harris or bearer in six months from date [ *512 ] with interest, signed Samuel Standish, *Jr.” The judge decided that the note was inadmissible under the bill of particulars, and directed the jury to find a verdict for the amount of the plaintiff’s demand. Yerdict accordingly. The defendant now moves for a new trial.

B. F. Agan, for defendant.

J. H. Boyd, for plaintiff.

By the Court, If George Chandler had been plaintiff, and was suing on the note which he offered to set off, it would have been sufficient, in declaring, to allege that Standish made his promissory note and thereby promised, &c., without taking any notice of the fact that there was another maker and that the promise was joint and several. The legal effect of the contract was, a several promise by each maker, as well as a joint promise by both. The note was set out according to its legal effect in the

p. 512

defendant’s bill of particulars, and I am unable to discover any variance whatever. It was described with great particularity. The place where made, date, amount, name of payee, negotiability, time of payment, &c., were all set forth with entire accuracy. If the plaintiff thought it insufficient, he should have applied for a more particular account of the set off, or a literal copy of the note which the defendant proposed to give in evidence.

I cannot suppose that there was any design to mislead the plaintiff, or that he was surprised by the offer to give the note in evidence. There was no suggestion that he alone had ever given a note answering to the description in the bill of particulars, and it is too much to presume such a fact for the purpose of defeating a set off which is apparently legal.

New trial granted.