I concur with Justice Ingraham in the conclusions at which he has arrived. It is, in my judgment, an important element in their favor that the plaintiff received on the defendants’ order one third of the malt, in quantity, and for aught that appears, in quality also. The delivery of it to him was the result of a proposition from the defendants Hartshorne & Brand to break up the joint account and accept the share, to which the plaintiff acceded, accepting the malt delivered, without objection. This statement of the arrangement was not denied or controverted by the plaintiff; and that fact having been established, the judgment should not be maintained. The evidence relating to it was not objected to, and it became the duty of the referee and of this court on appeal, to consider the case with reference to such testimony. If the fact proved had the effect of opening a subject not necessarily embraced in the issues presented by the pleadings, the plaintiff should have met it. If he could by responsive proof show outstanding equities in relation to the joint transaction, he would have been awarded the benefit resulting from the proof, in whatever form that benefit should be extended. As the courts of the state are now constituted, they apply legal and equitable rules and maxims indiscriminately in every case (Dobson v. Pearce, 2 Kern. 156; N. Y. Cent. Ins. Co. v. National Protection Ins. Co., 14 N. Y. 90;). and it would not be equitable to permit the plaintiff to recover against the defendants Hartshorne & Brand for any greater sum than by the proofs they are shown to be indebted.
*280Learned, J.(after stating the facts.) An action was brought on another of these four notes in the Common Pleas, and that action and the present were tried together before the same referee. His report in both actions was in favor of the plaintiff. On appeal to the General Term of the Common Pleas the judgment was affirmed. (See MS. opinion, Gordon v. Boppe.)
The precise points involved in this case appear, therefore, to have been decided between these parties in another court of this state; That decision, if not absolutely binding upon us, should, as I think, have great weight, not merely as an authority upon the legal principles passed upon, but as an adjudication between substantially the same parties, on substantially the same litigation. Unless, then, it is very clearly our duty to disagree with that decision, I think it should be followed.
It seems to me that the defendants have some rights and equities growing out of this malt transaction which we cannot settle in this suit. We are not in full possession of the facts. Some sales appear to have been made by the defendants; to what extent does not appear. What they thus received we do not know. There is some disagreement as to the question whether the defendants finally delivered to the plaintiff his share of the same malt which had been purchased on joint account. Nor do we know whether the defendants performed the duty of selling the malt faithfully. -
These considerations make it difficult, if not impossible, to adjust the rights of the defendants by way of counter claim or defence to this note. It is true that on this joint purchase, where each was to pay one-third, or about $4,457.07, the plaintiff appears to have practically paid $6,000 and the defendants $2,864. And the appellants claim that on a settlement they would owe the plaintiff only $1,593.06.
But no defence is set up in the answer under which the rights of the parties under a final settlement could *281be shown. These are matters of affirmative defence by way of counter claim, or payment, or the like. ¡No application for leave to amend the pleadings appears to have been made.. And it is a matter of importance, if the settlement of the joint purchase is to be a defence, that it should be pleaded. If that is brought into this controversy the record should show the fact, that the matter may be final.
[First Department, General Term, at New York, January, 1873.Under the pleadings, then, in this action, I think that the judgment must be affirmed. For it does not seem to me that the evidence proves that the note was an accommodation note, or that it was without consideration. And while in the furtherance of justice I should desire not to be technical in a matter of pleading; yet I do not think we can do real' justice to the parties by bringing into this controversy the matters of the joint purchase, as they imperfectly appear on the evidence.
I think the judgment should be affirmed, with costs.
Judgment reverse^., and a new trial ordered, costs to abide the evpnt; unless the plaintiff consents to reduce the judgment to $1,593.06 and interest from 17th September, in which case the judgment to be affirmed for that sum, without costs of appeal.
Ingraham, Brady and Learned, Justices.]