Clark v. Bell

The action was upon an assigned claim growing out of a contract between plaintiff’s assignor and defendant, whereby the court finds that defendant agreed to pay plaintiff’s assignor, on account of the performance of certain work and the furnishing of certain materials, the sum of $1,864.01; that defendant had paid plaintiff’s assignor before the assignment the sum of $1,342.69; that, in addition, defendant had paid before the assignment for certain materials furnished plaintiff’s assignor in the work, and which under the contract he was given authority to pay, the further sum of $396.50, which would, under the findings, leave a balance due plaintiff of $124.82. During the progress of the trial leave was given defendant to amend his answer upon payment of $13 costs. The latter amount the court by stipulation incorporated in the judgment, and gave plaintiff a judgment for $137.82. Plaintiff appeals upon the ground that the credit of $396.50 was improperly allowed, because it was in .the nature of a counterclaim, and no averments appear with reference to payment before the assignment.

The averments with reference to the payment of $396.50 were not in the nature of a counterclaim,…