
    PAUL vs. CARROLL.
    jin an action of assumpsit instituted by plaintiff agaiqjst ‘ defendant for services as agent, it is competent for the defendant to set off amounts of moneys collected for him by the plaintiff while in his employ, without proving a demand prior to the time of instituting the suit.
    APPEAL FROM ST-. LOUIS COURT OE COMMON PLEAS.
    Hill, for appellant.
    1st. The unsealed admission of Paul, dated 15th Feb. 1846, referring to the sealed contract, varied from the bill of particulars both as to description and time employed, and no notice was conveyed by the bill of particulars, that any such paper existed. It should have boon excluded» 2 Boss. & Pall 243; 3 Esp. 368; 4 Esp. 7; 1 Taunt. 353; 1 Esp. 452; 2 Sell. 339; 2 Wend. 577. (a) This point is properly saved in the bill of exceptions, and is very simple when the court examines the objection made. 1 Wendell 602.
    2d. The common pleas erred in refusing to admit the testimony offered by the defendant, unless demand was made before the suit was brought, showing that Carroll had received $2,543 of Paul’s money which he had not accounted for.
    (a) Carol], as Paul’s clerk, to receive rents, having sued his employer for wages, had no legal right to object that the moneys he had appropriated to himself in that employment, should he set up as a payment or a set off.
    (b) The law will apply it as a payment of Carroll’s claim co instanti.
    
    (c) By the law of principal and agent, Carroll was not entitled to object that no demand had been made, for he had been guilty of misfeasance and malfeasance both, and by the nature of his employment, he was required to account and pay over to Paul at reasonable times, and his failure to da so would authorize suit by Paul without demand. Amer. Lead Cas. vol. 1, 519, 520 Clark vs. Moody 17 Mass. Rep. 148, 350; Toney vs. Bryant 16 Pick. Rep. 528; Lilly vs. Hoyt 5. Hill 396; Hawkins vs. Walker, 4 Yerger 188; Estes vs. Stokes 2 Richardson 133.
    (d) Carroll’s fraud and malfeasance clearly appears from the record, for his abstraction and appropriation of Paul’s money extended through a period of two years ; and this suit against Paul precluded a demand and waived it if it was necessary.
    2d. The court of common picas erred in giving the instructions asked by plaintiff, and in refusing to. give the 4th instruction asked by the defendant.
    (a)' These instructions of the plaintiff misled the jury, by requiring a certain description of proof in relation to the written admission of 15th February 1846.
    
      (b) There was abundant evidence to support the 4th instruction of defendant, which was. refused, and this prejudiced the defendant’s case unlawfully. '
    Todd & Krum, for appellee-.
    1st. The 6rst error assigned by the appellant cannot be available to him. because no motion in, arrest of judgment was made in the court below. Admitting that the declaration is.defective, or that there was no declaration, the objection is cured by verdict. At all events, the question sought to be raised under this error, as to.the sufficiency of the declaration, cannot be considered, in this court.
    2d. The court belo.w. committed no error in allowing both written agreements to be- read in evi-. dence under the declaration and bill of particulars. The agreement dated May 1st 1844, (being a covenant under seal) was read without objection, but it was competent evidence, if objection-, had been made. The second agreement, dated 15th Feb. 1846,. was properly admitted in evidence-under the declaration and bill of particulars. It was offered not as the foundatiou of the action,. but merely as evidence tending to profe;jhc third item in the plaintiff’s bill of particulars.
    The law is now well settled, that when there has been a special contract, the whole of which, has been executed on the part of the plaintiff, and the time of paymenton the part of the defendant is past, general assumpsit can. be maintained, and the measure of damage will be the rate of' recompense fixed by the special contract. 7 Cranch 290; 11- Wheaton 237; 9 Peter’s Rep. Seethe rule as settled and laid down in note to case of Culler vs. Powell, in 2d Smith's leading cases page 19 et seg.
    3d. The objection to the reading of the paper dated Feb, 15th 1846, is general, and the grounds of the objection do not appear on tile record. The ground of tho objection is now stated ore terms.in this court, to wit: that there is a variance between statement in the 2d item of the bill of particulars and the paper offered in evidence. A general objection to the competency of testimony, without stating the point or ground of objection, is never considered in nisi prius trials. But allowing that the objection may be considered by this.court, there is in.fact no variance. This is. settled by long established and unvarying rules of law on the subject of variance. 1 Greenleafon cv. sec. 63, 66, 67.
    4th. The court below did not err in excluding the testimony offered by defendant, designed to-show that Carroll, while acting as agent for Paul, had collected rents &c. for Paul. 1st. Because it appeared in evidence, and so it was admitted at the trial by defendant, that Carroll had been acting as the agent or employee of Paul for the collection of his rents, keeping books, writing deeds, ¿fe.; and that the moneys (if any) sought to be set off, came to Carroll’s hands by collections made by him while acting as such agent, and it was not shown that any previous demand had-been made of Carroll for said money, nor any order or direction given him in respect to their pay-, inont or disposition, A
    
    In support of the first branch of the proposition stated under this point, the following reasons, are stated and authorities cited. The proof offered, if competent, and offered to establish a set off, which is in the nature of a cross action. To entitle Paul to the benefit of his pretended set-off, he must have boon in a condition to maintain a suit- against Carroll for the same debt at the time he offered to give proof of tho set off. He was not obliged to set off his demand. That previous demand must be made of an agent before suit brought, for money,, goods, or property in his hands,, is clearly established by the following adjudged cases. 2 Mo. Rep. 199; 3 lb. 315; 11 lb, 114; 3 Blackford 251, 324; 1 Mason C. C. 440; 6 Porter (Ab.) 32; 5 Ab. 84; 1 Dev. (N. C.) 79; Comyers Dig. 261: 17 Mas. 145, 149.
    5th. The court below did not err in overruling the motion for a new trial. 1st. Because there-was a second application for a new trial, and the court below was restricted in its powers by, statute, and the jury did not err in a matter of law. Vide Rev. Laws p. 830. 2d. Because the ■instructions given are legal, and the instruction asked by defendant, and refused by the court, was illegal. 4 Mo. Rep. 86; 7 lb. 57 259; 9 lb, 314.
    6th. From all the testimony in the case (even upon the testimony and admissions given by the defendant himself) it is manifest that there was a balance due from Paul to Carroll at the time •this suit was brought. If, then, the evidence offered by defendant, and excluded by th'e court, was correctly ruled out, the judgment of the court below must stand, for there is no motion to set ■aside the verdict on the ground that the damages are excessive.
   Judge Birch

delivered the opinion of the court.

A single question arises from an inspection of the record in this case requiring the interposition of this court. The action was assumpsit, on the common courts, to which the defendant pleaded the statutory general issue.

Upon the trial in the court below, after the plaintiff bad closed his •testimony, the defendant offered in evidence accounts of rents &c-., of Paul’s kept by Carroll, showing that from May 1st ’44 to Nov. 1st ’46, Carroll had received $2543 of Paul’s money, which he had not accounted for, and offered to prove the items by witnesses. The plaintiff objecting, the court excluded the testimony, on the ground that there wag no proof that the money had been demanded, prior to the bringing of this suit, and to this the defendant excepted. Carroll had been acting as agent for Paulin settling accounts, keeping books, collecting moneys, &e., but had been out of his employment several months before the commencement of this suit. Indeed the suit grew out of the services alleged to have been rendered in that capacity. Such a case, therefore, seems to us to have no just analogy to those to which we have been referred—proceeding as they generally do, upon the assumption that the money was received by the agent to await the instructions of his principal. Here the reverse was the case, not only from the nature of the business, (including the every day association of the parties, tinder the same roof) during the time of the agency, but from the antagonistic relations subsequently produced by the plaintiff himself in the commencement of this suit, which, of itself, we think should be held equivalent to a request—had one been necessary, at the most, however, the plaintiff should be regarded as coming within that description of collecting agents “whose duty it was to receive money and pay it over in a reasonable time, and therefore liable to a suit without demand.” Am.leading ca. p. 520. Upon the whole, we think the testimony excluded should have gone to the jury. The judgment of the court below is therefore reversed, and the cause remanded.  