•Opinion by
Mb. Justice McCollum,The single question presented by this appeal is whether the learned court below erred in rejecting the defendant’s evidence, and offers of evidence that, in consequence of the plaintiff’s failure to deliver the boiler at the time stipulated in the contract, he lost three months’ rent of his building on Broad street. The ground on which the evidence was rejected was that it was inadmissible under the pleadings. The learned judge thought, and so held, that in order to introduce an item of this character by way of set-off, recoupment or equitable defence, the plaintiff should have reasonable notice, by plea or otherwise, of the defendant’s intention to present it on the trial as a complete or partial answer to the action. The rule of court in Philadelphia county, applicable to this question, is as follows : “ Any defence, legal or equitable, that might heretofore have been specially pleaded or given in evidence under equitable pleas, shall be admissible under the plea of the gen*393eral issue, upon notice given at least ten days before tbe day set for trial. Such notice of special matters of defence shall contain a specific averment of facts sufficient to constitute a good legal or equitable defence. Copies of such notice shall be filed of record and also served on the plaintiff or his attorney at least ten days before the day set for trial. In default of such notice the defence shall be confined to matters strictly admissible under the plea filed.”
As the defendant concedes that his claim for rent was not admissible as a set-off we need not quote the portion of the rule which relates particularly to that subject. His contention is that it should have been allowed under the plea of non assumpsit and payment. It is well settled that under the plea of payment alone the proof to support it must be confined to matters which were admissible at common law and which constitute technical payment. If equitable payment is alleged, notice of the matters constituting it must be given. The defendant’s rejected evidence was therefore clearly inadmissible under his plea of payment. Was it admissible under the plea of non assumpsit ? It related to a lease of the Broad street building to Barber after the contract in question was entered into, to the loss of that lease, the contents of it and to Barber’s abandonment of it. Its purpose was to charge the plaintiff with the loss the defendant alleged lie sustained by such abandonment, and to attribute the same to the plaintiff’s alleged failure to deliver the boiler for use in another building belonging’to tbe defendant on another street. That a defence of this nature falls within the rule we have quoted, we have no doubt. We think it was not admissible at common law under a plea of non assumpsit, nor do we think it was so connected with the contract in suit as to warrant its admission under that plea, in the courts of our state, without timely and adequate notice of it. It embraced a transaction, between the defendant and a third person, to which the plaintiff was not a party and which he had no reason to anticipate as an element in the defence to his claim. Surely it would be inequitable to allow a defence'of this nature to prevail without opportunity afforded the plaintiff to meet it. We think the learned court did not err in rejecting defendant’s evidence, and offers of evidence, embraced in the several specifications of error.
Judgment affirmed.