
    J. I. Norton v. John Foster.
    July Term, 1873.
    1. Jurisdiction: District Court: As to Amount. The district court has jurisdiction of actions on contract for the recovery of money only, where the amount claimed exceeds one hundred dollars, and does not exceed three hundred dollars.
    2. Counter-Claim: Set-Off: Assignment After Maturity. Thepayorof a promissory note who may have a counter-claim or set-off against the payee of the note is not deprived of the benefit of his counter-claim or set-off by an assignment of the note after maturity. On the contrary, he is entitled to have one demand satisfy the other up to the amount of the smaller demand, but he is not entitled to have an affirmative judgment rendered in his favor, and against the assignee, for any excess of his demand, over and above the amount of the promissory note.
    
      *3. Instructions: Exceptions in Supreme Court. Where no exception liris been taken to any of the instructions given by the court to the jury, the supreme court cannot consider any of such instructions, although some of them may have been brought to the supreme court. And where only a portion of the instructions given lias been brought to the supreme court, such court cannot consider any of those refused. [Kshinka v. Cawker, 16 Kan. 64; Carson v. Funk, 27 Kan. 526.]
    4. Error Immaterial. Immaterial error should be disregarded. [Goodman v. Davis, 32 Kan. 348; S. C. 4 Pac. Rep. 262.]
    Error from Saline district court.
    The case is stated in the opinion.
    
      Lowe & Hiller, for plaintiff in error.
    The rulings of the district court which plaintiff in error seeks to 'have reviewed in this case are two: First, has the district court jurisdiction of actions on contract for the recovery of money only, where "the amount claimed does not exceed $300 ? And, second, is a defendant deprived of his right of set-off, or counter-claim, against the ■assignee of a promissory note, where the assignment of such note is made after maturity of the note?
    The district court had no jurisdiction of the action. The face of "the note sued on was less than $100; but it is admitted that with the added interest the amount exceeded that sum. By the amendment of the justice’s act, (Laws of 1870, c. 88, § 1,) original jurisdiction of all actions on contract, where the amount claimed is less than $300, is given to justices of the peace. “Original” means, as here used, “exclusive original.” This objection was raised in the district ■court, and there overruled; hence the question may be reviewed here.
    *The court erred in shutting out the third defense in the defendant’s answer, and in the charges given and refused. That the answ'er w'buld have been good in a suit against Black was ■admitted by the court and counsel on the trial; and the third defense is directly included in the meaning of the word “counter-claim” as defined in sections 94 and 95 of the Code. But it was claimed that ■such a defense was unavailable in a suit by the assignee. It would seem to us that section 100 of the Code distinctly declares that such ■a defense is good against an assignee. Certainly, the assignee in ■this case cannot claim the benefit of those equities which surround the bona fide holder of negotiable paper transferred before maturity. But the defendant, if not entitled to judgment for any excess, should have been allowed to recoup his damages to the extent of the plaintiff’s claim. Wiswell v. First Congregational Church, 14 Ohio St. •31; Wat. Set-off, 113, 114, and notes, and 511-516. This defense was ruled out on motion, after defendant had given some testimony ■on the subject of the damages claimed, without abjection. The whole question seems to have been decided in this state in the case of Leavenson v. Lafontane, 3 Kan. *523, which fully supports the position of the plaintiff in this case.
    
      
      John Foster, defendant in error, for himself.
    The question of jurisdiction of the district court in cases like this, has been already settled by this court.
    The evidence was conclusively in favor of the plaintiff below. The questions of fact were submitted to the jury, and by them decided. Only a portion of the evidence is brought here, and this court is thus-precluded from reviewing the questions of fact.
    So, too, in regard to the instructions. The record does not purport to contain all the instructions given; and those not brought here-may have rendered those refused wholly unnecessary.
    There was no error in rejecting the testimony offered to show that defendant was entitled to a judgment against the *plaintiff by reason of damages sustained by the fraud or omission or breach of conduct of the assignor of the plaintiff. The plaintiff took the note (after maturity) subject to all equities between the payor and the payee respecting said note, to the full amount thereof; but-he did not, by the assignment to him, either in law or fact, become liable to the maker of the note for the payment of any damages or counter-claim in excess of the note. All the evidence offered tending to show a failure of the consideration of the note was received. But. defendant complains because he was not allowed to repeat the evidence he had already introduced, when offered to sustain his third defense, in which he claims a judgment against plaintiff below.
   Valentine, J.

This was an action on a promissory note. The-plaintiff in error (defendant below) says in his brief that “the rulings-of the district court which plaintiff in error seeks to have reviewed in this ease are two: First, has the district court jurisdiction of actions on contract for the recovery of money only, where the amount, claimed does not exceed $300 ? And, second, is a defendant deprived of his right of set-off or counter-claim against the assignee of a promissory note, where the assignment of such note is made after the maturity of the note ?”

The first question we must answer in the affirmative, as the question has already been so decided in this court. Henderson v. Kennedy, 9 Kan. *163. The note sued on in this case was for $79, with interest thereon at the rate of ten per cent, per annum for over three-years, making the amount claimed over $100. The judgment was. for $116.95, and costs of suit.

The second question we must answer in the negative. Gen. St.. 635, 649; Code, §§ 27, 100. This question has also been decided obiter in this court. Leavenson v. Lafontane, 3 Kan. *523, *526. The payor of a promissory note, who may have a eounterclaim or set-off against the payee of the *note, is not deprived of the benefit of his counter-claim or set-off by an assignment of the note after maturity. On the contrary, he is entitled to have one demand satisfy the other up to the amount of the smaller demand; but. he is not entitled to have an affirmative judgment rendered in his favor, and against the assignee, for any excess of his demand over and above the amount of the promissory note.

Whether the court below committed any error or not is not clear from the record; but we feel clear that no material error, no error affecting the substantial rights of the defendant below, was committed. The defendant took no exceptions to any of the instructions given by the court to the jury, and hence we cannot consider any of such instructions, although some of them have been brought to this court. Neither has the plaintiff in error brought all the evidence introduced on the trial to this court, and hence we must presume that there was sufficient evidence to sustain the verdict. The plaintiff in error, however, complains of the exclusion of certain evidence which tended to prove his third defense. The petition below shows that the note sued on was executed by the defendant below to one Bobert C. Black, and assigned by Black after maturity to the plaintiff below. Besides a general denial to the petition, the defendant below set up in his answer three separate defenses. The first defense alleges that said note was given in consideration of certain breaking which said Black falsely claimed to have done on the defendant’s land in the state of Illinois, in accordance with a certain contract which had previously been entered into between said defendant and said Black; but said defendant further alleges in said defense, “that the breaking was not done according to said contract, and was of no value to this defendant whatever, but was a great damage to this defendant, to-wit, in the sum of $100.” The second defense states substantially the same facts as the first, except the $100 damages, and then adds: “Whereby said promissory note was wholly luithout consideration.” The third defense alleges substantially the same facts as the first and second, and then adds that “by reason of the *failure of the said Bobert C. Black to perform his part of the said contract, this defendant lost the use of said land one whole season, and this defendant was compelled to hire said breaking done by other parties, to the damage of this defendant in the sum of $100. This defendant therefore prays that he may have judgment for the sum of one hundred dollars, his damages, and costs of suit.”

The court allowed evidence to be introduced under the first and second defenses, and to prove the same, but refused to allow evidence to be introduced under the third defense. That is, it would seem that the court allowed the defendant to show what the note was given for; that the breaking was not done according to contract; that the breaking was of no value; that the defendant was damaged to the amount of $100; and that the note was without consideration, — for the purpose of defeating a recovery on the note; but would not allow the same facts to be proved, nor evidence to be introduced showing that “the defendant lost the use of his land for one whole season,” and “was compelled to hire said breaking done by other parties,” for the purpose of obtaining an affirmative judgment, not against Black, the payee of said note, but against the plaintiff, an assignee of said note. This was right. As we have before stated, the payor of a promissory note is not entitled to have an affirmative judgment rendered in his favor, and against the assignee of the note, for any excess of his counter-claim or set-off over and above the amount of the promissory note; but he'can set up and prove his counter-claim or set-off only for the purpose of reducing or defeating a recovery on the promissory note.

But even if the court erred, the error was, under the circumstances of this case, immaterial, and should be disregarded. It was necessary for the defendant, in order to prove his third defense, to prove that there was a special contract, and that the breaking was not done according to such special contract. This he was allowed to do under his first and second defenses, and he tried to do it, but wholly failed, as the verdict of the jury shows. The verdict of the jury was for the plaintiff *for the full amount of the note. The defendant probably proved the special contract, — indeed, that seems to be admitted, — but he fails to show that the breaking was not done in accordance with such special contract. Upon this latter point the evidence was conflicting, and the jury found for the plaintiff.

The judgment of the court below is affirmed.

(All the justices concurring.)  