
    Locke against Smith.
    NEW YORK,
    May, 1813.
    S. signed a •which,"tor vahe promised to paint the house of L, in a particular manner, specified in the writing; and 15. endorsed on the paper a promise that the agreement should be executed in a maúner ln an action of sl agamst h. Igreemtiluiy way of sei-o#; anu claimed damages for its non-performance ; it was held to be a valid contract between S. and L, which might be set off.
    A justice cannot reject evidence, or act from Jiis own personal knowledge of the truth of the fagi&
    IN’ ERROR, on certiorari, from a justice’s court. Smith brought an action oí assumpsit, for work and labour, &c. against Locke, in the court below. The defendant, L. pleaded, by way of set-off damages for the breach of a contract, by which, for value received, the plaintiff undertook to paint the house of the defendant, in a certain manner, specified in the agreement, which was signed by Smith, and on which was the following endorsement : “ I promise that the within contract shall be executed in a workmanlike manner, as is expressed. T. ButlerThe cause was tried by a jury. Most of the plaintiff’s account was admit* ‘üc^ by the defendant, who offered in evidence the agreement, and claimed damages for the non-performance. The plaintiff objected to the evidence, on the ground that the agreement did not appear to be between the plaintiff and defendant; but that the contract was between the plaintiff and Butler, and that the defendant had • * paid Btitler, and there was no consideration money from the de» fendant to the plaintiff, whereby the plaintiff was bound to the defendant, by that agreement. These facts being offered to be proved, the justice stated that, “ knowing the facts alleged on the part of the plaintiff, from being personally acquainted with the circumstances, and the several contracts alleged, at the time of the same,” he overruled the evidence of the facts as illegal, and refused to admit any testimony relating to the non-performance of the agreement, because the claim could be no legal set-off against the account of the plaintiff. A verdict was found for the plaintiff on which the justice gave judgment.
   Per Curiam.

The question in this case is, whether the claim set up by the defendant, ought to have been received by the justice as a set-off against the plaintiff’s demand. The agreement, on the face of it, purports to be a contract between the plaintiff and defendant, and is expressed to be for value received. The. endorsement by Butler is a mere guaranty for the performance by the plaintiff below. There was, therefore, no ground, prima facie, for the allegation that the contract was not made between the parties to the suit, or that there was no consideration for it. The objection was not on the ground that the defendant did not prove the execution of the writing by the plaintiff: and he offered to prove the damages sustained by a breach of the contract. Indeed, the nature of the objection implied an admission of the contract, for it was alleged to have been made with Butler, and not with the defendant.

It is unnecessary to decide whether the testimony offered by the plaintiff to contradict or explain the written contract ought to have been received. The justice could not act upon his own knowledge of the verity of the facts; and this was the ground on which he excluded the evidence. The judgment, therefore, must be reversed.

Judgment reversed.

BXD OF MAY TERM.  