said premises, undertaken by him, according to the terms of the said agreements, or either of them, and as he was required to do by the said defendant, that he, the said defendant, after the 1st day of May, and after notice of his intention so to do, employed painters to paint the said premises, and paid for such painting the sum of $551.92, and which said sum was a reasonable compensation, as the said defendant has been informed and believes, for the said painting; and the said defendant will claim to have the said sum allowed to him by way of payment, reduction, set-off or money paid, laid out and expended for the said plaintiff or otherwise, against any claim that may be established herein against him, the said defendant. JOHN R. BRADY, Defendant's Attorney. (No. 63.) Separate counter-claim, pleaded by one of several defendants, between whom and the plaintiff a separate judgment might be rendered.1 SUPREME COURT. E. L. M. C. F. M., impleaded with J. M. T., G. T. and M. V. The defendant, C. F. M., impleaded, &c., for separate answer to the plaintiff's complaint, alleges, by way of counter-claim: 1 To Complaint No. 5, Part III., ante, p. 361. The Superior Court of New-York, at General Term (Peabody v. Bloomer, 3 Abbott, 353), refused to allow a counter-claim to be set up against a plaintiff, by First. That said plaintiff is indebted to him, the said defendant, in the sum of $50, for so much money loaned the said plaintiff by said defendant, on or about the day of, with interest from that date, which, although demanded, the said defendant has neglected and refused to repay. Second. And for a second and further defence, by way of counter-claim, the said defendant says, that there is due him from the said plaintiff the sum of $250, with interest from the day of, which defendant claims against said plaintiff on a promissory note, executed by the plaintiff to the defendant, of which the following is a copy: [Insert copy note;] which several sums the defendant claims to offset against the demand of said plaintiff, one of several joint debtors, in an action for a debt due by them as copartners. The defence is not such that, in such an action, there can be a separate judgment against the defendants, who are jointly liable, and who do not and could not set up the defence upon which the de fendant, pleading the counter-claim, relies. But at a General Term of the Supreme Court, in the sixth district (Briggs v. Briggs and Vose, 20 Barb., 477), a counter-claim is held allowable by one of two joint factors or consignees. It does not clearly appear from the report whether the liability of the defendant, in this case, was held to be a joint or a joint and several liability. If the latter, the decision merely followed the case of Parsons v. Nash (8 How., 454; see, also, People v. Cram, 8 How., 451), and is not inconsistent with the decision of the Superior Court, above referred to. If the former, it is, of course, in direct conflict with that decision. At all events, there can be no doubt that one of two or more defendants, who are severally as well as jointly liable, may avail himself of a counter-claim, and not only defeat the entire action, but obtain a separate affirmative judgment. (See Pleadings, pp. 556, 557.) The counterclaim above is drawn in such a case, it being by a defendant sued as endorser of a check. 1 This mode of pleading an instrument for the payment of money, by section 162 Code, is applicable to an answer as well as a complaint. (See precedents of complaints so drawn, Nos. 1, 2, 3, ante, pp. 354, 358.) and demands judgment against said plaintiff for the balance due defendant, to wit, the sum of $, besides costs. B. H. HALL, Defendant's Attorney. (No. 64. ) Equitable defence, setting up a mistake in contract for sale of land which is sought to be specifically enforced in an action by vendee against vendor, and the same defence set up by way of counter-claim.1 Title of the Cause. The defendant, for answer to the plaintiff's complaint in this action, alleges: That at the time of the making of the agreement set forth in the plaintiff's complaint, and which is sought to be specifically enforced, there was and still is an outstanding mortgage, upon the premises agreed to be conveyed by the defendant to said plaintiff, executed by one A. B., the defendant's grantor, to one B. G., on or about A defendant, against whom a specific performance of a written agreement is sought, may insist, by way of answer, upon a mistake in the contract as a bar to the bill, because he may insist upon any matter which shows it to be inequitable to grant such relief (Story Eq. Juris., § 161); and it seems he may set up this defence by way of counter-claim and ask that the contract be reformed. (Pleadings, 570 to 573.) It is not, however, every claim, whether equitable or legal, that a defendant may have against the plaintiff, which he may set up as a counter-claim. Thus it is held that, in an action for damages for diverting a water-course, the defendant cannot set up, either by way of equitable defence or counter-claim, the violation by plaintiff of an agreement relative to the deepening of the channel made four years prior to the alleged diversion of the water. (Pattison v. Richards, 22 Barb., 143.) the day of, and held by him, the said B. G., on which was and still is due the sum of $, principal and interest. That at the time of the negotiation for the sale of said premises, the existence of said mortgage was mentioned by defendant to the said plaintiff, and the amount due thereon, and it was understood and agreed between them that the price to be paid for said premises, to wit, the sum of $ as mentioned in said contract, was over and above the amount of said mortgage, and that said premises were to be conveyed free and clear of all incumbrances, except the said mortgage. That it was mutually understood between said parties that said contract was to be so drawn. That said contract was drawn, a day or two after the verbal agreement and understanding had between said parties, by C. B., Esq., from written memoranda furnished by this defendant, but that he, the said defendant, by mistake omitted to mention therein said mortgage, or to direct said C. B. to insert in said contract that said premises were to be conveyed free and clear of all incumbrances except said mortgage, and said contract was accordingly drawn as set forth in said complaint, to wit, that the said premises were to be conveyed free and clear of all incumbrances. That said contract was hastily read over to said defendant before he attached his signature thereto, and that he did not discover or notice the omission, and signed the same supposing that it was drawn in all respects pursuant to the said verbal agreement and understanding between said parties. That he did not discover said omission until the tender by plaintiff of said purchase money, and demand of a warranty deed with covenants against all incumbrances, &c. That at the time of said tender and demand, the defendant called the plaintiff's attention to their original understanding and agreement, and offered to fulfill the same, and give him a warranty deed of said premises with full covenants, except as against said incumbrance by mortgage, and to convey to him said premises subject to said mortgage; but that said plaintiff refused to accept any such conveyance, and insisted upon his right under said contract to a conveyance free and clear of all incumbrance. The same defence by way of counter-claim, praying a reformation of the contract, and offering to perform the same so reformed. [Set forth the material allegations showing the mistake, as in the foregoing, and then add:] Wherefore the defendant demands the judgment of the court that the said contract may be corrected and reformed by inserting therein, in place of the provision that said defendant, on the payment, &c., shall convey to said plaintiff by a good and sufficient conveyance, with warranty and full covenants, the provision that said defendant shall so convey free and clear of all incumbrances, except said mortgage, the payment of which is to be assumed by said plaintiff; and that said plaintiff may be adjudged specifically to perform said contract so reformed, and to pay said defendant the full amount of the contract price mentioned in said contract, and to receive from him such conveyance of said premises free and clear of all incumbrances except said mortgage, he the said defendant being ready and willing and hereby offering so to convey, or for such other and further relief, &c., [as in Complaint No. 1, Part II.] |