
    P. and L. Collins v. L. A. Pellerin.
    A defence should not be stricken out on account of the mistake of an attorney in pleading compensation for payment, the substance of the defence being the same.
    
      APPEAL from the Fifth District Court of New Orleans. Buchanan, J.
    
      W. C. Budd, for plaintiffs.
    
      Wolfe and Singleton, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

A suit between these parties, and involving the same contract was once before this court, and is reported in 5th Ann. 99. The present action is to recover the amount of a loan of $1400. The defendant acknowledges the receipt of the money, but avers that subsequent to this receipt the plaintiffs shipped a quantity of rope and cotton cuttings, and caused them to be sold for the purpose of paying themselves this debt of $1400 ; that said cotton and rope cuttings were worth the sum of $2100, which the plaintiff's are charged with having appropriated to their own use.

The district judge struck out the claim in reconvention and the allegations of the answer relating to this shipment, on the ground that the answer contained a plea in compensation, and gave judgment for the plaintiffs. The defendant has appealed.

We think that, substantially, the defence must be considered as containing a plea of payment, although in the answer the defendant alleges that the debt is extinguished by compensation. The pleading is certainly very bad, but the-attorney’s mistaking compensation for payment, does not alter the substance of the defence.

As this transaction is entire, if the defence is established at all, there maybe a balance on the shipment due the defendant, which he ought to recover, we think, in these proceedings, under his reconventional demand, which tho judge also struck out. The judge having refused to receive evidence under either head in relation to the shipment, we think the court erred in this particular.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings in accordance with this opinion ; the appellees paying the costs of this appeal.  