Wakefield v. Spencer

By the Oowt't.

Elamdrau, J.

The order striking out the demurrer to the reply cannot be reviewed on writ of error. Coit vs. Waples & Zirkle, 1 M. R., 134. If the Defendant desired to review any order made in the progress of the case prior to judgment, he should have appealed. In an appeal from a judgment, this Court may review any intermediate order involving the merits, and necessarily affecting thejudg-anent. Comp. Stats., 621, sec. 7. A writ of error does not reach such orders.

Was the Plaintiff entitled to judgment on the pleadings ? The complaint is upon three promissory notes, the last two of which bear date August 17, 1861, and are given by the Defendant directly to the Plaintiff. The answer admits the execution of these notes by omitting to say anything about them, and, as a defence to the complaint, sets up a counter claim for work and services performed before the execution of the two notes to the Plaintiff, and alleges that such work and services are worth a sum exceeding the Plaintiffs’ demand, and that no part of it has ever been paid. The Plaintiff replies a general denial. Also a settlement of all matters between Plaintiff and Defendant on the 17th of August, 1861, the day of the date of the two notes, and that said two notes were given for the balance found due the Plaintiff on such settlement.

The right of the Plaintiff to judgment on the pleadings, depends upon the sufficiency of the answer. The Plaintiff claims that the giving of the two notes to him by the Defendant, after the time when he claims the Plaintiff was in his debt for the work and services, is an admission that such services had been settled for. There is no doubt that the giving- of a promissory note is prima facie evidence of an accounting and settlement between parties, and that the maker was indebted to the payee upon such settlement to the amount of the note. Lake vs. Tyson, 2 Seld., 461: But this presumption is onl j prima facie, and may always be explained and rebutted. People seldom give notes to others unless they are indebted to them; hence the presumption. Yet there may be cases where notes are given, notwithstanding the payee may be indebted to the maker. It may be by design, or by mistake; in either case the facts may be shown, and the debt set off against the note. Where the two facts stand alone, of an indebtedness by one person to another, and the creditor subsequently giving his note to the debtor, courts will presume the debt paid, and the former creditor become the debtor to the amount of the note, and if this state of things should appear in a pleading, it would entitle the Plaintiff to judgment without further proof, But such is not the case in the Defendant’s answer. He admits that he made the notes to the Plaintiff at the time he claims the Plaintiff waa his debtor, but to repel the presumption that would follow of his debt having been paid, he distinctly alleges that no part of the sum owing him for his work-and services has ever been paid. What more could he say ? To detail the whole transaction out of which the notes were given, and allege that he had forgotten that the debt existed when he gave them, or that the amount was unsettled, or any other reason why it was not then offset, would be bad pleading; ityvouldjfbe setting out the reason for, and evidence of the fact, and not the fact itself, which simply is, that the debt was not paid when the notes were given. We think the answer is good, and the judgment should be reversed. The Defendant is entitled to have his offset- tried. New trial awarded.

So ordered and adjudged.