Babcock, 22 Barb., p. 326; Ferreira vs. Depew, 4 4. WHAT CONSTITUTES AN OFFSET.-A claim to constitute a set-off must be such that the party pleading it could obtain a several judgment upon it; and a joint debt cannot be made a set-off against a several one. To justify the allowance of a set-off of joint debt due from plaintiff, and another against the individual claim of plaintiff, upon equitable grounds, beside showing that the joint debtors owe a considerable amount, and that their property is incumbered by judgments, mortgages, and attachments, it must also be shown. that they are insolvent, or that the defendants are in danger of losing their demand.-Howard vs. Shores, 20 Cal., p. 277. 5. DAMAGES FOR BREACH OF CONTRACT AS A COUNTER CLAIM.-If plaintiff asks in his complaint for damages for the breach on the part of the defendant of a written contract between the parties, the defendant may interpose in his answer a counter claim for damages for a breach of the contract by plaintiffs.— Dennis vs. Belt, 50 Cal., p. 247. 6. COUNTER CLAIM DEFINED.-A counter claim is a cause of action in favor of the defendant, upon which he might have sued the plaintiff and obtained affirmative relief, in a separate action.-Belleau vs. Thompson et al., Oct. Term, 1867. 7. A JOINT CLAIM BY TWO PERSONS MUST NOT BE SET UP AS A COUNTER CLAIM BY ONE DEFENDANT, but he may amend and aver that the whole interest therein had been transferred to him.-Stearns vs. Martin, 4 Cal., p. 229; but if the legal and equitable liabilities on claims of money become vested in or may be urged against one, they may be set off against separate demands, and vice versa.-Russell vs. Conway, 11 Cal., p. 101; Collins vs. Butler, 14 Cal., p. 223. 8. WHAT IS NECESSARY TO CONSTITUTE SET-OFF AT LAW. To authorize a set-off at law, the debts must be between the parties in their own rights, and must be of the same kind and quality, and be clearly ascertained or liquidated; they must be certain and determined debts.-Naglee vs. Palmer, 7 Cal., p. 543; see this doubted, however, in Duff vs. Hobbs, 19 Cal., p. 646. 9. WHAT MAY BE SET UP AS COUNTER CLAIM, ETC., IN SUITS ON CONTRACTS.-Plaintiff sues for balance due on a contract for erecting a building, and a small 49-VOL. I. sum for extra work. Defendant seeks to offset a claim for two and one third months' rent lost by him, because of the neglect of plainiiff to finish the building within the time specified in the contract, defendant having at the date of the contract leased the building to responsible tenants, the lease to take effect from the time of its completion, as required under the contract; but it was decided that defendant cannot offset his rents, because the circumstances show that the contract was modified by the parties as to the time for the completion of the building.-McGinley vs. Hardy, 18 Cal., p. 115. 10. COPARTNERSHIP CLAIMS, DEBTS, ETC., as SetOFFS, WHEN.-A party may purchase cross demands against a partnership, and set them up as a defense to a debt due by him to a partnership.-Naglee vs. Minturn, 8 Cal., p. 540; Marye vs. Jones, 9 Cal., p. 335. In a suit to recover damages for breach of a covenant to indemnify plaintiff against liabilities, the defendant cannot set up as a counter claim demands which were matters of partnership between the parties.-Haskell vs. Moore, 29 Cal., p. 437. When partners are sued as factors their claim for disbursements, commissions, etc., need not be stated in their answer as set-offs.-Lubert vs. Chauviteau, 3 Cal., p. 463. 11. EQUITY WILL ENFORCE SET-OFF, WHEN.-When the parties have mutual demands against each other which are so situated that it is impossible for the party claiming a set-off to obtain satisfaction of his claim by an ordinary suit at law or in equity, then upon the filing of a bill a Court of equity will enforce the equitable setoff.-Russell vs. Conway, 11 Cal., p. 93; see, also, Collins vs. Butler, 14 Cal., p. 227; Hobbs vs. Duff, 23 Cal., p. 596. 12. JUDGMENTS, WHEN SET-OFFS, AND HOW.When a person seeks to set off judgments in different Courts he must go into the Court in which the judgment against himself was recovered.-Russell vs. Conway, 11 Cal., p. 101. See, also, as to judgments as setoffs, Beckman vs. Manlove, 18 Cal., p. 388; Collins vs. Butler, 14 Cal., p. 227; Porter vs. Liscom, 22 Cal., p. 430; and particularly, Hobbs vs. Duff, 23 Cal., p. 596. 13. BREACH OF WARRANTY AS COUNTER CLAIM BY WAY OF RECOUPMENT.-See Earl vs. Bull, 15 Cal., p.425. 14. SET-OFFS SHOULD BE SPECIALLY PLEADED.See Hicks vs. Green, 9 Cal., p. 75; Wallace vs. Bear River Water and Mining Co., 18 Cal., p. 461; Bernard defendant omits to set up counter 439. If the defendant omit to set up a counter Wheu claim in the cases mentioned in the first subdivision of the last section, neither he nor his assignee can afterwards maintain an action against the plaintiff' therefor. claim not barred by death or in 440. (§ 48.) When cross demands have existed Counter between persons, under such circumstances that, if one had brought an action against the other, a counter claim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other; but the two demands must be deemed compensated so far as they equal each other. But a claim. existing in favor of the maker of a negotiable instrument and against a holder after maturity, intermediate between the payee and the last holder, is not a cross demand. 441. NOTE.-Vinton vs. Crowe, 4 Cal., p. 309. The last clause is added to the section at the instance of Justice Wallace. Although a party may set up an equitable defense to an action at law, his remedy is not confined to that proceeding. He may let the judgment go at law, and file his bill in equity for relief.-Lorraine vs. Long, 6 Cal. p. 453. may several defense. Amended 1893.41. (§ 49.) The defendant may set forth by Answer answer as many defenses and counter claims as he may contain have. They must be separately stated, and the sev- grounds of eral defenses must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. The defend- Defendant ant may also answer one or more of the several causes answer of action stated in the complaint and demur to the demur to residue. NOTE. INCONSISTENT DEFENSES.-In Bell vs. Brown, 22 Cal., p. 679, the Court say: "The question of may part and part of to set forth as many defenses as he thinks proper is fully recognized, and also that pleading one defense cannot be held a waiver of another in the same answer, even though inconsistent. In Sweet vs. Tuttle, 4 Kern., p. 465, Mayhew vs. Robinson, 10 How. Pr., p. 162, and Bridge vs. Payson, 5 Sandf., p. 210, a general denial and plea of nonjoinder of defendants were united and held good. So in Gardner vs. Clark, 21 N. Y., p. 399, where a plea of performance and a former action pending were joined. So in Doran vs. Dinsmore, 20 How. Pr., p. 503, where a general denial was coupled with a plea of payment. So in Mott vs. Burnett, 2 E. D. Smith, p. 52, it was held that the defendant might deny making the note sued on, allege a set-off, and that one of the makers of the note had been discharged by the holder. In an action to recover personal property it was held the defendant might answer by a general denial and set up a justification of the taking.-Harkley vs. Ogmun, 10 How. Pr., p. 44. In slander, that he may deny the charge and also justify.-Ormsby vs. Douglass, 5 Duer, p. 665; Butler vs. Wentworth, 17 Barb., p. 649; 9 How. Pr., p. 282. So, also, that pleas which were not inconsistent under the former practice are good as answers under the Code.Lansing vs. Parker, How. Pr., p. 288. Held, too, that a defendant should never be required to elect between a denial of a material allegation of the complaint and new matter constituting a defense.-Hollenbeck vs. Clow, 9 How. Pr., p. 289. And that it was not necessary that the several defenses in an answer should be consistent with each other.-Stiles vs. Comstock, 9 How. Pr., p. 48. Also, that denials of allegations in the complaint may be coupled with a defense of the Statute of Limitations.-Ostrum vs. Bixby, 9 How. Pr., p. 57. Held, too, that a defense might be hypothetically predicated upon a fact alleged in the complaint, as an answer after denying that the plaintiff was the owner of the note sued on, averred that if the plaintiff is the owner, he took it with notice of a failure of the consideration.-Brown vs. Ryckman, 12 How. Pr., p. 313. Or if the defendants, by their agents, ever issued the certificate of deposit sued on, the same has been paid.-Doran vs. Dinsmore, 20 How. Pr., p. 503. Also held that an implied admission in one of the defenses set up in an answer will not conclude or estop the defendant from proving another defense set up in the same answer, as each defense in an answer stands by itself, and an admission in one is not available against the others.-Swift vs. Kingsley, 24 Barb. S. C., p. 541. In the case of Ketchum vs. Zeriga, 2. GENERALLY.-See Nudd vs. Thompson, 34 Cal., NEW Rection 442. (Cross complaint.) CHAPTER V. DEMURRER TO ANSWER. SECTION 443. When plaintiff' may demur to answer. 444. Grounds of demurrer. When 443. ($ 50.) The plaintiff may, within the same length of time after service of the answer as the de- may demur to answer. |