This action is brought to recover from defendant the price of certain boots and shoes, sold by the plaintiff to defendant’s wife and children. The answer denied the plaintiff’s claim, and set up a counter-claim for a lot sold by the defendant’s wife to plaintiff, in the Cypress, Hills Cemetery.'
The admission of the evidence as to the counter-claim was objected to by the plaintiff. He also attempted to show, that the lot in the cemetery was bought by him from Martin and not IM, defendant’s wife.
There can be no doubt that, so far as the evidence was intended to establish .the counter-claim, it was erroneously admitted.
The 150th section of the Code, allowing the counter-claim, requires that it must be in favor of the defendant and against the ■plaintiff. The claim attempted to be set up as a counter-claim ■ was neither in favor of the defendant nor against the plaintiff. If it belonged to any of the parties or persons connected with them, it was the separate property of the defendant’s wife, and was a claim which she, as such, could have enforced against 'Newman, without reference to her husband’s debts.
But, although it could not be set up as a counter-claim, I think -the.evidence was admissible under the general deni.al of the plaintiff’s complaint. The claim was for goods sold to the defendant’s wife. The answer denied, generally, the plaintiff’s claim.
Proof that the defendant’s wife, before the goods were pur--chased, had delivered to Newman either money or property, for which she was to receive from him goods in payment, destroyed the plaintiff’s cause of action, not by establishing a counterclaim, but by showing that the goods were delivered in payment of moneys owing by Newman to Mrs. Cox, and of course that no contract was ever made with Newman on behalf of the bus-*83band (tbe defendant), or that he ever incurred any liability therefor. /
There is proof of an admission, by Newman, that he had purl chased from Mrs. Cox this share, and was to pay for it, onel half in cash and one-half in shoes, to Mrs. Cox. If this was so, then the sale was not to the defendant, but the shoes were delivered in payment of a previous indebtedness existing on his part to Mrs. Cox.
Under the very loose system of oral pleading allowed in these courts, we do not apply the strict rules of courts of record to them. If, by any reasonable construction, the testimony is admissible without doing injustice to the parties, we do not feel called upon to consider such an error fatal. ,.
The question as to who sold Newman the certificate, wheth* Martin or Mrs. Cox, was a question of fact for the court belowj depending on contradictory testimony, and with that decision we see no ground to interfere. There is abundant evidence to sustain the finding on this point.
Whether the transfer to Newman from Mrs. Cox was strictly legal or not, is immaterial. It answered the purpose intended^ so that by its surrender the company gave to Newman a deed for the premises. It does not belong to the purchaser to set up that defence after he has received the value of it.
The testimony of a former suit was immaterial. So far as it was admitted, oral proof was admissible. It was proper to ask whether a suit had been brought and whether it was tried. It they had gone further and proved by parol what would have appeared by the pleadings, then it would be erroneous. But no such evidence was offered.
The objection to the substance of a conversation being given, and not the exact words of it, is not well taken. It is seldom that any witness can detail the precise words used, and where the witness cannot he is allowed to state the substance as near as he can.
There was not sufficient evidence to warrant the admission of a copy of the letter marked “ D.” The notice to produce it was *84served on tbe plaintiff, while nothing shows that it was ever in his possession. On the contrary, the letter was addressed and sent to Mr. Newman and not the plaintiff. It was not the plaintiff’s business to obtain testimony for the defendant which was not in his possession. The witness Newman should have been subpoenaed to produce the letter, and if he had lost or destroyed it, on proof of that fact, parol evidence of its contents was admissible, but not otherwise.
There is also some ground for objection to the rulings of the justice, as to allowing parol proof of the by-laws or regulations of the cemetery as to forfeiting shares not paid for — where such regulations are reduced to writing, they should be produced and '|¿pt proved by the mere recollection of a witness. It is unnecessary, however, to examine the other objections as to testimonjr, because the judgment must be reversed, for the reasons above stated, as to the admission of parol proof of the contents of defendant’s letter.
Judgment reversed.