Opinion
(August Term, 1847.)
A. had collected a sum of money for B. and, being sued for it by B.'s administrator, pleaded only the general issue. Held, that A. could not give in evidence that B. had lived with him and that the expenses of her maintenance amounted to more than the money collected. He should have pleaded this as a set-off.
APPEAL from BURKE Spring Term, 1846; Pearson, J.
Assumpsit for money had and received, and the pleas nonassumpsit, statute of limitations, accord and satisfaction and release.
On the trial the plaintiff gave evidence that about six years before the death of his intestate, Ann Donaho, the defendant collected from one C. Howard the sum of $300, which he owed to her on his promissory note; and that the defendant said at the time that he was collecting the debt for her, who then lived with him and had sundry (352) articles of personal property there. The plaintiff further gave evidence that after he administered, he applied to the defendant for the property in his hands belonging to the intestate, and, after receiving the specific chattels, that he asked the defendant if there was no money or any note for money belonging to her, and he said there was not. Thereupon the present suit was instituted.
On the part of the defendant evidence was then given that for seven years before the intestate died she lived with the family of the defendant on a tract of land belonging to her, the intestate, and that she was so old and infirm as to be unable to attend to her business; and he offered to prove that the maintenance of the intestate during that period exceeded in value the sum of $300 so received by the defendant. The plaintiff then offered to give evidence to show that, admitting the $300 was not sufficient to defray the charges of the intestate, yet the profits or annual value of her plantation, on which the defendant lived, was more than equivalent to that expense. But the court was of the opinion that the action was misconceived, for that the facts made a fit case for a bill in the court of equity for an account of moneys collected, or that the defendant ought to have collected, for the intestate, of the profits of the land, and that in this action, where the defendant showed that the $300 he had received had been expended for board and clothes, the plaintiff could not introduce as a new item the use of the land as an equivalent. In submission to the opinion, the plaintiff was nonsuited, and appealed.
N.W. Woodfin and Alexander for plaintiff.
Gaither and Avery for defendant.
The Court considers the decision erroneous. The defendant did not offer evidence of payments to the intestate, nor that she and he had come to an account for her board and maintenance, on the one hand, and of the money collected by him, on the other. (353) His defense was simply that he had a counter-demand against the intestate for seven years board and clothing. That demand is strictly a set-off and admissible in no other form; but that was not pleaded. If the defendant had asked leave to add the plea, doubtless the court would have allowed the plaintiff to add counts for rent or use and occupation, and for other moneys collected, so as to have brought the whole controversy fairly before the jury for adjustment. They were all proper subjects of legal jurisdiction and might have been embraced in this action on either special counts or the general counts on promises. However, it is needless to speculate on that point, because in the state of the pleadings this defense was not open at all; and, therefore, without adverting to any other matter, the judgment must be
PER CURIAM. Reversed.