Umstot v. Lewis

Adkins, J., delivered the opinion of the Court. This appeal is from a judgment of non pros, on a verdict for plaintiffs for $37.32, and judgment for defendant for costs. The case was tried by the court sitting without a jury. The argument, on appeal, on the part of both appellants and appellee, deals with the question of set-off and recoupment, the former contending that the defense set up by appellee could not be made without a plea of set-off, and the latter insisting that it could be made by way of recoupment.

During the progress of the trial below the court admitted, subject to exception, certain testimony which was objected to by plaintiffs, with the view that the pleas would be amended and a plea of set-off filed. But such a plea was not in fact filed, and, as the court refused to strike out such testimony, it must later have reached the conclusion that, after all, another theory was tenable, viz: that the testimony objected to was admissible as tending to prove that defendant never was indebted for part at least of the items charged in the bill of particulars of the plaintiffs’ claim, and, therefore, as to such items, the principles governing set-off and recoupment were not involved. In this we agree with the trial court. The suit was in assumpsit on three of the common counts and a fourth “for automobile parts, automobile repairs, gasoline, oil, work and labor and other materials furnished to the defendant by the plaintiffs at defendant’s request from May 21st to October 27th, 1925, in the sum of $337.64.” Attached to the narr. was an itemized account of materials and labor furnished.

Defendant pleaded the gen ⁶²³ eral issue pleas. Plaintiffs proved that the materials and labor charged were furnished, that the prices were reasonable, and that no part of its bill had been paid. There was no dispute about the items of gas and oil. The defendant was asked “Did you have a truck deal with Ilmstot Brothers some time early in 1925 ?

A. Yes, sir. Q. Go on, tell the court in a general way about that transaction.” The question was objected to, and the objection was overruled. That ruling is the subject of the first bill of exception. Counsel for defendant explained