
    Ebenezer Price vs. John Combs.
    certiorari.
    In an action brought by A. against B. to recover a store account, B. will he permitted to prove by parol, that the articles charged in the account were delivered to B. upon an agreement between A. B. and C, that A. was to take his pay in stone ware manufactured by C. Such an agreement is not within the statute of frauds.
    A party who files a set off is not precluded in a justice’s court from relying upon any other just defence on the trial.
    This was an action of debt commenced originally before a, justice of the peace, by John Combs against Ebenezer Price, for a store account, amounting to $77.20. The defendant, Combs, filed an offset in the following words: “ Mr. John Combs to Ebenezer Price, Jr., Dr. 1827, Dec. 3d. To bill of stone ware got by Samuel Combs, as per verbal contract $170.00.” On the trial before the justice, the witnesses offered by the defendant were overruled by the justice, and judgment rendered in favor *of Combs, for $77.20, besides costs. Price then appealed to the Court of Common Pleas of Middlesex, who affirmed the judgment of the justice in all things, and made the following state of the case, which was sent up to this court with the certiorari, which was thereupon sued out by Price.
    The plaintiff, John Combs, having proved his books of account and given the same in evidence, rested his case. And thereupon the defendant, Ebeuezer Price, by his counsel opened his case. The defendant offered Abiel Price, a witness, who being sworn deposed and said, that Samuel Combs, the father of the plaintiff, came to him and Ebenezer Price, and contracted with them for a lot of stone ware to be paid for in goods, to be got out of the store of his son John Combs. The stone ware amounted to between four and five hundred dollars. Deponent and the defendant were to get goods of the plaintiff to the amount of the ware. The said Samuel Combs, John Combs his father, mentioned to him the terms of the contract, and he assented to it and said, they could have the goods, and each of them got goods out of the store. The stone ware was put on board the sloop; is not positive, but to the best of his recollection thinks, that John Combs was present when they first talked to his father about the ware and assented to the mode of payment as above mentioned; thinks that a list of the stone ware was made out to be printed and taken up by John Combs for that purpose. When Samuel Combs first spoke to them about it, he proposed the terms of payment as above stated, by his son and no other was talked of. And being cross-examined said, deponent and defendant manufactured stone ware together, and when made they usually divided it before the sale. This lot was not actually divided. Samuel Combs, had heretofore got other stone ware of them under a similar contract with John Combs, who has furnished deponent with goods, therefor, and settled for them with deponent against the ware.
    The plaintiff by his counsel applied to the court to reject the witness and overrule his evidence on the ground that he was interested. On argument the court rejected the witness and overruled .the evidence. The defendant then offered in evidence, a release executed by the witness to him (pro ut the same) the ^execution of which was done in the presence of the court. The release was objected to by the plaintiff and overruled.
    The defendant then offered Henry French, Jr., to prove that the articles in the plaintiff’s state of demand, were got by the defendant under a contract between the defendant, the plaintiff and Samuel Oombs, that stone ware was to be delivered to Samuel Oombs, to be paid for by the plaintiff in goods to be furnished by him to the defendant. It was objected to on the ground that there -was no plea filed sufficient to warrant the evidence and the evidence was overruled.
    
      Wood, for the plaintiff in certiorari,
    moved to reverse the judgment of the Court of Common Pleas, because.they erred in rejecting the testimony of Abiel Price and Henry French, Jr., the witnesses offered on the part of Price, the defendant below.
    
      O. L. Hardenbergh, contra,
    said, Price sets up as an offset that one Samuel Oombs was indebted to him for stone ware, and that John Oombs undertook to pay it; this was proving by parol, a promise by John Oombs, to pay the debt of Samuel Oombs. It was a promise to pay the debt of another, which could not be proved by parol with'out violating the statute of frauds. The proof that John Oombs said, that it was all right, was not sufficient to make him liable.
    But Abiel Price, the witness offered by the defendant below, was directly interested in the controversy. He was concerned with Ebenezer Price in the manufacture of stone ware.
    
      Wood, replied.
    After the goods were actually made and delivered, and the promise consummated, it was too late to set up the statute, even if the promise had been a mere collateral promise by one to pay the debt of another. But it was an original undertaking by John Combs to pay for the ware. The only mode provided for the payment was the taking goods out of the store. If it had been a collateral undertaking, and Samuel Combs had been liable himself) and John Combs had actually paid it, it would be too late lor him to take this objection.
    Abiol Price was a competent witness, because he was not interested in the event of this suit.
   By tiie Court.

On the trial the plaintiff proved his books of account, and rested his case. The defendant then offered to *prove that the articles mentioned in the state of demand were delivered under a contract between Samuel Combs, John Combs and Ebenezer Price, and to be paid for by Samuel in stone ware, and the court overruled the evidence. The evidence was admissible, and there was no objection to the competency of Henry French.

The case is not within the statute of frauds ; it was not a collateral undertaking.

The evidence was not offered by way of setting up an offset, but to resist the plaintiff’s claim. Although a party files a set-off, it does not preclude him from relying upon any other just defence on the trial of the cause.

Judgment reversed.  