Rose v. Buscher

Fowler, J., delivered the opinion of the Court. The plaintiff sued the defendant in assumpsit on the common counts in the Circuit Court for Anne Arundel County. To this action the defendant pleaded payment and set-off, and filed with the latter a bill of particulars. The plaintiff pleaded limitations to defendant’s plea of set-off, and upon the suggestion of the latter the case was thereupon removed to the Superior Court of Baltimore City, where, after several amendments of the defendant’s pleadings, the case was finally tried before a jury on the common counts, to which ²³¹ there was a general issue plea, a special plea of payment as. to the fifth count, and a plea of set-off, and the plaintiff’s plea of limitations thereto.

The verdict of the jury having been against the defendant, he has appealed. The rulings upon the prayers present the only questions for review. The Court below granted five of the plaintiff’s prayers, namely, the first, third, sixth, seventh and eighth, and gave an instruction as to the application of limitations to defendant’s set-off. The defendant’s first, second and fifth prayers were each modified, and his sixth was rejected. i.

The first prayer of the plaintiff is not objected to as granted, and all objections as to the sixth and eighth having been waived, we shall consider only the third and seventh. It will be observed that the third was granted in connection with defendant’s fifth prayer, and this being so, we are unable to see the force of the defendant’s objection that he was, by the granting of this prayer of the plaintiff, deprived of the benefit of the evidence offered under the plea of payment. Both prayers inform the jury that the defendant is entitled to a deduction from the plaintiff’s claim for all sums of money which they shall find the former paid for the latter by his authority ; provided, that no deduction shall be made for any of the alleged items of set-off mentioned in the instruction on limitation. The defendant, while conceding that limitations might be a bar to recovery for the items in the bill of particulars of his set-off, which are mentioned in the Court’s instruction, suggests that such items cannot be barred when offered under the plea of payment, because limitations cannot be pleaded to payments.

Without discussing this proposition, it is sufficient to say that the record does not show that any evidence as to the items excluded by the Court’s instruction was offered by the defendant for any purpose. It may be assumed, perhaps, by reason of the Court’s instruction, that such evidence was offered in support of defendant’s