The question is as to what defence a plaintiff may make to a counter claim on the j>art of the defendant. C. C. P., § 105 provides that ‘‘when the answer contains new matter constituting a counter claim the plaintiff may * * * reply to such new matter, * * * and he may allege * * * any new matter not inconsistent with the complaint constituting a defence to such new matter in the answer.”
It is insisted that the plaintiff can not allege new matter to the counter claim, but is confined to a reply to the counter claim, or by denying it altogether, or by confessing and avoiding it. That is error however and grows probably out of considering that § 101 governs it. But § 101 relates only to the answer. § 105 which relates to the reply governs it, and provides expressly that the plaintiff may not only reply to the defendant’s counter claim but may allege “ new matter” which has no connection with the matter alleged in the complaint, or the.new matter alleged in the answer, the
It is not necessary that we should give a reason for this,, because a statute is arbitrary and is good without a reason; but it would be inconvenient and unjust if it were otherwise. Before C. C. P. a defendant could plead a set off to plaintiff’s claim and defeat the plaintiff’s recovering in whole or in part as the case might be, but the defendant could not recover his set off and have judgment against the plaintiff; but under C. C. P. he may not only defeat the plaintiff, but have judgment against the plaintiff' for the excess of his counter claim. And it would be manifestly unjust to deprive the plaintiff of a defence to the counter claim which is set up not only to defeat his action but to subject him to a judgment upon the counter claim.
In our case the plaintiff claims a lumber bill against the defendant. Very well, says the defendant, I owe it, but you owe me a balance'for a tract of land you bought of me. Very well, says the plaintiff, I owe it, but you owe me on account of that same land transaction. It was certainly contemplated by the C. C. P. that all these matters might be settled in the same suit.
We do not think that there is any force in the defendant’s objection that the plaintiff can not prove his new matter by parol, because he does not seek by parol to contradict the written contract about the land. The contract by parol which he sets up is consistent with the written contract and is outside of it. Judgment affirmed and judgment here.