The opinion of the court was delivered, November 14th 1867, by
Strong, J.This was an action to recover one-half of several sums of money which the plaintiff alleged he had paid in discharge of joint liabilities of himself and the defendant. It was therefore an attempt to enforce contribution. One branch of the defence consisted in a denial of the alleged joint liability. To support his case, the plaintiff gave in evidence an agreement between D. R. Burford, on the one part, and Stewart, the plaintiff, and Finlay, the defendant, on the other, signed and sealed by all the parties, by which Burford agreed to sell, and Stewart and Finlay agreed to purchase, three tracts of land, containing together about five hundred and fifty acres. By the agreement, Stewart and Finlay covenanted to pay for the land “ one hundred thousand dollars, as follows, to wit, three thousand dollars on the 15th of March 1865, ten thousand dollars on the 1st of May 1865 and the balance on the 1st of June 1865, or else this contract to be null and void.”
On the day appointed, March 15th, Stewart, the plaintiff, made the first payment of $3000, the one-half of which he claimed to recover in this suit. In reference to this, the defendant requested the court to charge the jury that the contract between Burford and Stewart and Finlay imposed no legal obligation upon the vendees to pay the consideration-money set forth therein, or any part thereof, and hence that if Stewart did pay any money on the contract subsequent to its date, in the absence of, or without •the knowledge, consent or request of Finlay, such payment was voluntary, and created no liability on the part of Finlay for contribution. The court refused so to charge, and this is assigned for error. We do not understand the contract as contended by the plaintiff in error. It was not a mere refusal of the land to the vendees, which they might take or not at pleasure. They agreed to purchase, and bound themselves to pay on certain specified days. Certainly, when the payment of the $3000 was made, the contract was not null, and, if not, the vendees were then jointly bound to pay. The concluding clause following the covenant to pay in these words “ or else this contract to be null and void,” was introduced for the benefit of the vendor, as a stimulant to prompt payment of the agreed price, not as a release of the vendees from their express covenants. It was in effect as if the vendor had said, “ if you do not pay as you have covenanted, you shall have no right under this contract.” The attempt to *190use it now as giving an option to the covenantors to pay any of the sums mentioned, even the first, or not to pay at all, is a perversion of its purpose. And even if there was an option given, it must be held as applying only to the last payment, that fixed for the 1st of June, for the language of the covenant, being that of the covenantors, is to be construed most strongly against them. The instruction asked for in the defendant’s 1st and 2d points was therefore correctly refused.
The 3d point presented by the defendant relates to the purchase of another tract of land, a tract known as Whitman or Sugar Creek. That tract had been sold by Whitman, by articles' of agreement, to S. E. Yeager, for the sum of $25,000, to be paid on the 1st of April 1865, or as soon thereafter as the deed and ■title papers might be perfected, with a stipulation that the contract should be null and void, and no more binding on either party, in case the vendee failed to pay in accordance with its terms. Yeager assigned his interest to Standart and others, and on the 13th of March 1865 Standart assigned his interest to Fin-lay and Stewart for the consideration of $5000. This sum was paid by Stewart, and the time for completing the contract was subsequently extended, as the evidence tended to show, at the instance of Einlay. There was some contrariety in the evidence respecting the question whether Finlay was present and assenting to the arrangement when the assignment was made to him and Stewart. In reference to this state of the proofs, the defendant’s 3d point was proposed as follows: “ That if the jury believe, from the weight of the evidence in this case, that the purchase of the Whitman tract of land, on or near Sugar Creek, was made by the plaintiff in the absence of, and without the assent of, the defendant, though the name of the defendant is inserted in the transfer.of the 13th of March 1865, made by Standart, yet no liability by this fact would fall upon the defendant, and whatever amount the plaintiff then paid would be a voluntary payment only, for any portion of which the defendant is not bound.” It is very obvious that this could not have been unqualifiedly affirmed, in view of the evidence, without error, for if there was previous authority given by Finlay to Stewart to take the assignment on the terms, and as it was taken, or if Stewart’s act was without authority, and was subsequently ratified, it became the act of Finlay, even though he was not present at the transaction, and did not then assent to it. And this is, in substance, what the court said in answer to the point. The jury were told that if Stewart made the purchase, without the concurrence of Fin-lay and for his own use, and not for their joint benefit, Finlay would not be liable. But if the contract was made for their joint benefit, by previous authority from Finlay, or if subsequently *191ratified by him, he would be bound; that although he may not have been present at the making of the contract, still, if made in his name and subsequently agreed to by him, he was bound by it. And it was submitted to the jury to find how the facts were respecting previous authority, or subsequent ratification. While therefore the point was negatived in the words in which it was presented, the plaintiff in error had all the benefit'of i.t to which he was entitled. ■
Another assignment of error is that the court, in denial of the 4th point of the defendant, left to the jury to find whether $2000, paid by the plaintiff for an extension of time on the Whitman contract, was paid with the consent and approbation of the defendant, or whether the payment was subsequently assented to by him.
It is said there was no evidence to warrant such a submission. We think, however, there was very convincing evidence, both of his assent to the payment, and -of his subsequent ratification of it, to be found in the testimony of James M. Bredin, and in the telegrams afterwards transmitted by him.
The other points presented by the defendant were intended to raise the question whether the plaintiff-had not mistaken his remedy in suing in assumpsit, instead of account render.
The court was asked to charge that if the jury believed, from the evidence, that a partnership existed in 1865, between the plaintiff and defendant, in buying and selling lands, there could be no recovery in this action, there having been no evidence of any dissolution, or settlement of the partnership accounts, or balance struck. The point did not inquire what would be the law if the Burford tract and the Whitman tract had been bought in partnership. Yet it is obvious those purchases may hav^ been joint and not partnership transactions, though a partnership in regard to other lands may have existed. This, however, was not noticed by the court directly.
The point was answered substantially thus: The proper remedy to settle partnership accounts of an ordinary character, is by an action of account render, or by bill in chancery. But when the transaction is a single one, when no questions are involved in regard to the rights' of creditors, and especially when the subject-matter is real estate, and one part owner has advanced the' money, he may sustain the action of assumpsit. This we regard as a correct exposition- of the law as it is held in this state, vindicated by-several decisions already made. Among them are Gillis v. McKinstry, 6 W. & S. 78; Borrell v. Borrell, 9 Casey 492; Wright v. Cumpsty, 5 Wright 111. The answer was therefore as favorable to the defendant as he had a right to demand — and so was the answer to the 6th point. It certainly is not true that it was essential to the plaintiff’s recovery that the *192technical relation of partnership had existed between him and the defendant. There may have been a privity quite short of partnership and yet sufficient to entitle the one to contribution from the other.
This disposes of all the assignments of error to the charge. They are one and all without merit. We pahs now to the consideration of the exceptions taken to the admission or rejection of evidence.
The 1st is to the rejection of the deposition of Jacob Whitman. No. hill of exceptions appears to have been sealed to this ruling of the court. And, if there had been, it could not have availed the defendant. The deposition was impertinent to anything in issue in the cause.
The 2d is that the court permitted the witness Bredin to be recalled to prove the time and circumstances of giving a paper, already in evidence, for the purpose of explaining said paper and its date. To this the defendant objected; first, that the' evidence was not rebutting; and, secondly, that it was not competent for the plaintiff then to explain what was proposed to be done. Of the first objection, it may be said that if the evidence offered was admissible at any stage of the trial, the fact that it was offered and received in rebuttal when it should have been in chief is not assignable in error: Quinn v. Crowell, 4 Whart. 334; Wilson v. Jamieson, 7 Barr 126. And, on looking at the testimony given by the witness, it appears to us that it was entirely legitimate. He made no attempt to explain the paper, merely stating that it was given at the time it bore date. The remainder of the testimony had reference to other matters, proper to go to the jury. This exception is not sustained.
The next exception is that the court rejected defendant’s offer to prove that the plaintiff and defendant were in partnership in 1865 in purchasing and selling lands in Armstrong, Yenango and Clarion counties, and to be followed by proof of the items contained in the defendant’s bill of particulars, as set forth in his affidavit of defence. This offer was made under the plea of set-off, hut no specification had been filed according to the rules of the court, without which the rule denied to the defendant any right to make use of a set-off. It must be observed, first, that the offer was not to prove that the plaintiff and defendant had been in partnership in the purchase of the Whitman and Burford lands, the only ones in regard to which the plaintiff made any claim, but it was to show other transactions as preparatory to proof of the items of an alleged set-off. Secondly, it is to be noticed that the offer was entire, and hence, if any part of it was inadmissible, it was not error to reject it when presented as a whole. And clearly proof of a set-off was not admissible in the circumstances of the case. The court rule requires a defendant pleading set-off, unless *193the matter of defalcation be particularly set forth in his plea, to file with his plea a specification of the intended matters of set-off, to be in all respects like a bill of particulars required by the rules ; and it declares that he shall give no evidence of any matter of set-off -not particularly mentioned either in the plea or specification.
No such specification was filed with the plea or set forth in it. But it is said one was filed with the affidavit of defence, and this, it is urged, was a substantial compliance with the rule. We think not. It not having been filed with the plea, the plaintiff had a right to assume that the matters relied upon were abandoned though previously set forth in the affidavit of defence, and he might come to the trial unprepared to meet them. It is often the ease that matters of defence 'set forth in an affidavit of defence are not relied upon in the subsequent trial. But the matter is substantially settled by decisions heretofore made. In Sullivan v. Johns, 5 Whart. 866, where it appeared that evidence had been overruled at the trial in the court below, because no notice had been given of the matter intended to be given in evidence under the plea of set-off, though it had been set forth in an affidavit of defence filed, this court sustained the rejection of the evidence.
In delivering the opinion of the court, Rogers, .J., said,It is contended that the affidavit of defence is equivalent to notice, but this will not justify us in dispensing with the positive requirement of the rule of court, which is intended to guard against surprise. As the defendant omitted to give notice, the plaintiff had a right to suppose that all intention of insisting on a set-off had been abandoned.” * * * “ The rule of court is easily observed, and it is so-clearly beneficial that it ought not to be relaxed on slight or frivolous pretexts.” So in Erwin v. Leibert, 5 W. & S. 105, the same thing was decided in a case where the plea referred to the affidavit of defence : and the remarks of Gibson, C. J., upon the subject are very forcible, intimating that such rules ought to be rigidly enforced, and that equivalents for compliance should not be accepted. Those cases are alike in principle with the one before us. The plaintiff’s affidavit in reply to that of the defendant can make no possible difference. He had a right under the rule to be informed in the prescribed mode, when the plea was filed, what items of set-off the defendant then proposed to make use of at the trial; and this not only for protection against surprise, but also that the record might show what had been adjudicated. This assignment of error is therefore overruled.
There remains but one other. Unable to adduce his evidence of set-off because of his failure to comply with the rule of court, the defendant made an effort to elude the rule by moving for leave to file with his plea the specification of items which he had *194filed with his affidavit of defence. The court denied the motion, and of this he now complains. But how was he injured by the denial ? Had he been permitted to file the specification as he desired, it would not have cleared the way for proof of the items mentioned in it.
If it would, the rule is hut a cheat and a snare. It would be like making notice of special matter given at the trial of the same effect as if given fifteen days before. There is therefore no merit in this complaint.
The judgment is affirmed.