Bakes v. Connell

1 Daly 469

• Court: New York Court of Common Pleas
• Decided: July 15, 1865
• Status: Published

Opinion

By the Court.

Daly, F. J.

The defendant averred in his answer that but two thousand dollars of the three thousand acknowledged in the agreement to have been received had been paid, and upon the trial offered to show that the three thousand dollars were never paid by the defendant. This I think lie had a right to show. Although an instrument under seal acknowledges that the consideration expressed in it has been received, paroi evidence is admissible to show that it has not been paid, so far as the question may affect the ultimate right of the parties, the only restriction that has been imposed being that such evidence shall not have the effect of defeating the instrument so as to render it void for the want of any consideration (Shephard v. Little, 14 Johns., 210; McCrea v. Purmart, 16 Wend., 460; Bingham v. Weidermax, 1 N. Y. R. [1 Comst.], 509).

Such could not be the effect of the evidence here, as the answer admitted that two thousand dollars had been paid, and the defendant simply sought by his answer to axmil himself, in the action, of the defence that be had a subsisting claim against the plaintiff under the same contract to the extent of one thousand dollars. If this one thousand dollars had not been paid, the defendant could maintain an action to recover it, notwithstanding the acknowledgment in the agreement that it had been received (Bowen v. Bell, 20 Johns., 338). It was, in the language of the Code, a causa of action arising out of the contract, for the breach of which in another particular by the defendant, the plaintiff brought this action, and it was therefore a good counter-claim which the defendant might offset against the amount of the stipulated damages liquidated and fixed by the agreement.

The offer was made in a way that might well, and probably did, mislead the Court. It should have been an offer to show that one thousand dollars of the consideration money had not been paid, which the defendant claimed to have deducted from the two thousand dollars stipulated damages, and had it been thus intelligibly submitted, the Judge would, no doubt, have received the evidence. If that had been done, and the Judge’s attention called to the averment in the defendant’s answer, he would have seen that the defendant was entitled, if he proved the fact, to have the one thousand dollars allowed him in this action.

Upon all the other questions the ruling of the Judge was correct, but unless the plaintiff agrees to reduce the recovery by remitting the one thousand dollars, there must he a new trial.

Ordered accordingly.