1841. standing such plaintiff may not have obtained a rule for judgment on such service of declaration; and that a plaintiff who may have omitted to obtain a rule for judgment within the time prescribed by the present rules and practice, shall be entitled, on production of such plea, to an order of a judge for leave to draw up a rule for judgment as of the time at which such rule for judgment would have been obtained. 1841. TURNER V. DIAPER. Jan. 13th. ployed to do certain work for a certain sum, and part of the work is afterwards done by the employer, the amount of the latter work is matter, not of DEBT, for work and labour done to houses belonging Where a to the defendant. Pleas: first, never indebted, ex- person is emcept as to 371. 6s. 8d.; secondly, as to 367. 3s. payment before action brought; thirdly, as to 17. 3s. 8d., payment into court. The plaintiff joined issue on the first and second pleas, and took the 17. 3s. 8d. out of court. At the trial before the undersheriff of the county of Warwick, the defendant met the plaintiff's case by proving an agreement to do the work for 407.; and that he had paid the plaintiff, before action brought, 36l. 3s. on account, which, with the 17 3s. 8d. paid into court, amounted to 371. 6s. 8d. In order to cover the balance, 21. 13s. 4d., the defendant called a witness who proved that the defendant had employed him and another man to do the spouting to the houses, and had paid each of them 11. 6s. 8d. This evidence was objected to on the part of the plaintiff, on the ground that the 27. 13s. 4d. should have been pleaded as a set-off. The undersheriff inclined to that opinion, but received the evidence; and a verdict was found for the defendant, with leave for the plaintiff to move to enter a verdict for 21. 13s. 4d., or for a new trial. Goulburn Serjt. now moved accordingly. The tion is, whether the evidence of the work done defendant was admissible, without being pleaded. ques by the set-off, but of deduction. Where, therefore, in debt for work and labour, the defendant pleaded, never indebted except as to 371. 68. 8d., payment of 36l. 3s. be fore action, and payment of 11. 3s. 8d. into court, and the plaintiff joined issue on the first and second pleas, and [Tin- took the 11. 3s. 8d. out of court, and at the trial the defendant proved an agreement to do the work for 40%, and that he had paid 367. 38. on account, independently of the 17. 3s. 8d. paid into court, and to cover the balance, 27. 138. 4d., he proved that he had employed workmen to finish the work, and had paid them the last-mentioned sum; it was held, that the evidence was admissible under the plea of never indebted, and that the 21. 138. 4d. could not be pleaded as a set-off. 1841. TURNER บ. DIAPER. dal C. J. In an action for work and labour, the defendant, under the plea of nunquam indebitatus, may shew that the work never was done. Maule J. How can it be said that the money paid by the defendant was on account of the plaintiff, if it was not for work which the plaintiff should have done? Erskine J. Otherwise the payment would be irrelevant, even if there were a plea of set-off.] The case of Graham v. Partridge (a) shews that a set off must be pleaded; and it is submitted that the claim set up by the defendant for the 27. 13s. 4d. paid by him on acconnt of the plaintiff, is clearly the subject of a set off. [Bosanquet J. Suppose the defendant had not paid the 27. 13s. 4d.; the plaintiff, not having completed his job, would not have been entitled to recover that sum.] TINDAL C. J. I think that this case is governed by Cousins v. Paddon. (b) It was there held, that where there is a special contract for goods to be furnished, or work to be done, at a fixed price, and the declaration consists of the common counts in debt on simple contract, for goods sold and delivered, and for work and labour, to which the defendant pleads that he never was indebted, he may prove (since the new rules of pleading, as he might have done before,) that the goods delivered were not of the quality contracted for, or that the work was done in an improper manner. That seems to me to be precisely the same case as this. BOSANQUET J. Iam of the same opinion. The fact that the defendant paid the 21. 15s. 4d. may be entirely thrown out of consideration. (a) Tyrwh. & G. 754., 1 Mees. & Welsb. 395., 5 Dowl. P. C. 108. (b) 5 Tyrwh. 535., 2 Crompt. Mees. & Rosc. 547., 4 Dowl. P. C. 488. ERSKINE J. It being proved that the plaintiff undertook to do the work for 40l., and that, with the money. paid into court, he had received 371. 6s. 8d., in order to entitle him to a verdict, he was bound to shew that he had done work exceeding the latter amount. He proved that he had done a certain quantity of the work contracted for, and the defendant proved that he had left a part of it unfinished. The question then was, what was the full value of the work which had been performed. That was shewn by the sum of 21. 13s. 4d. paid by the defendant to the workmen employed by him to complete the contract; which, being deducted from 40%. the stipulated price, left 371. 6s. 8d., the amount which the plaintiff had received. As to the sum of 2l. 13s. 4d., therefore, the defence clearly was, not in the nature of a set-off, but that the work was not done. MAULE J. I also am of opinion, that this was not a case of set-off. The evidence offered by the defendant went to shew that he never was indebted beyond the 371. 6s. 8d. (a) And see Hayselden v. Staff, 5 A. & E. 153.; 6 Nev. & M. 659. As the plaintiff in the principal case insisted, not that the defendant was not entitled in any shape to the benefit of the 21. 138. 4d. paid to his workmen, but that this payment ought to have been pleaded as a set-off, it must be taken that he assented to the spouting being Rule refused. (a) done by the defendant. If before the plaintiff had been guilty of any default, the defendant had prevented the plaintiff from performing this part of his contract, by officiously doing the work himself, either against the will, or without the knowledge, of the plaintiff, the defendant would have remained liable to pay the whole 407. 1841. TURNER v. DIAPER. 1841. Jan. 11. stating "that in consideration that A. had, at the advanced 241. to C., and that A. would advance to C. the further sums of 21. THOMAS SMITH v. WILLIAM CALDWALL A declaration ASSUMPSIT. The declaration stated, that before the making of the promise of the defendant thereinafter next mentioned, the plaintiff, at the request of the defendant, had lent and advanced to one Robert request of B., Bass a certain sum of money, to wit, 247., and thereupon afterwards, to wit, 6th of April 1837, in consideration of the premises, and also in consideration that the plaintiff, at the like request of the defendant (a), would lend and advance to the said Robert Bass the further sums of 21. per week for so long a period as the said Robert Bass should require the same, and also such other sums of money as the said Robert Bass should from time to time require, he, the defendant, promised the plaintiff to repay to him as well the said sum of 247. so theretofore lent and advanced as aforesaid, as the said further sums of 21. per week, so long as the plaintiff should continue so to lend and advance the same to the said Robert Bass, and such other sums as the plaintiff should lend and advance to the said Robert Bass as aforesaid. per week for so long a period as C. should require, and also such other sums of money as C. should, from time to time, require, B. promised to repay him as well the 241., as the further sums of 21. per week, and such other sums as A. should lend and advance to C. as aforesaid," is not supported by a letter in which B. writes to A., “I beg that you will continue to advance the sum of 21. per week to C.; and I hereby engage to repay you all moneys you may advance to him, in addition to the 241. which you have already let him have at my request." But the variance may be amended by the judge at the trial, under 9 G. 4. c. 15., if not under 3 & 4 W. 4. c. 42. 8. 23. Where, upon such an amendment being made, the defendant submits to pay the sums recoverable under the amended declaration, he will be entitled to his costs from the time at which he might have paid money into court; but if he contests the plaintiff's right to recover any thing, and fails, he will be entitled only to the costs occasioned by the misdescription of the contract. (a) As to the unnecessary allegation of a request, where the consideration is executory, see antè, Vol. I. 265. (b). |