
    Bryant v. Swetland et al.
    
      Statute of limitations — Action to reform written instrument — When barred — Statute may be pleaded in bar when reformation sought by answer— When statute begins to run.
    
    1. An action to reform a written instrument on the ground of mistake, comes -within the class provided for by section 4985 of the Revised Statutes, which limits the time within which the same may be commenced, to ten years after the cause of action accrues.
    2. Where such reformation is sought by answer filed in an action brought to enforce th? instrument, the plaintiif may set up the statute in bar, when the cause of action for the reformation accrued more than ten years before the commencement of the action in which the answer is filed.
    3. In such case, the cause of action accrues upon the execution of the instrument, and the time when the statute begins to run is not postponed to the discovery of the mistake, as it is to the discovery of the fraud, in cases where relief is sought on that ground.
    (Decided February 24, 1891.)
    
      Error to the Circuit Court of Knox county.
    The original action was brought by Edwin D. Bryant against Joseph C. Swetland and Byrom L. Swetland, in the Court of Common Pleas of Knox county, on the 9th day of January, 1883. The petition alleges that “ on the 16th day of August, A. D. 1871, plaintiff, and the defendant, Byrom L. Swetland, were partners in the city of Mt. Yernon, Knox county, Ohio, in the dry goods business, and were in failing circumstances and unable to meet their debts then due and to become due; and that in order to effect a compromise with their creditors, who were mostly eastern wholesale merchants, and to prevent a sacrifice of their stock of goods, they entered into a contract with the defendant, Joseph C. Swetland, who is a brother of his co-defendant Byrom L., by the terms of which contract, plaintiff and his then partner, Byrom L. Swetland, sold and transferred all their stock of goods, then invoiced, together with the fixtures about and in their business house, and accounts due said firm, amounting, after taking out 10 per cent, discount, to the sum of $15,884.13. Said Joseph C. Swetland, by the terms of said contract, was to use the amount of property and accounts above sold and transferred to him, in payment of the debts of said firm by way of compromise as he should be able to obtain said claims against said firm; said Joseph C. Swetland not to pay out on the said claims against said firm of Swetland & Bryant a sum exceeding the sum of $15,839.74, and the said Joseph C. Swetland was to pay the balance, after paying debts of firm, to this plaintiff and his co-defendant, Byrom L. Swetland.”
    The petition further alleges, that at the time the contract was entered into, the total indebtedness of the firm was $15,657.58; that Joseph C. Swetland took possession of the stock of goods, fixtures, and accounts, under the contract, and “ entered upon and executed the trust created by said contract, and settled and compromised and paid off the debts of said firm.” The names of the creditors of the firm, together with a statement of the amount due each creditor. and of the amount paid by Joseph C. Swetland in satisfaction of each claim, are set forth in the petition.
    It is further averred that the “ whole amount paid by said defendant, Joseph C. Swetland, in payment and satisfaction of all the claims against the firm of Bryant & Swetland, was $12,668.16, and no more, and leaving a balance in the hands of said Joseph C. Swetland, after paying all the debts of the said firm, to the amount of $3,215.97; that all said claims against said firm of Swetland & Bryant, were compromised and paid off in the fall and winter of 1871, and plaintiff repeatedly requested Joseph C. Swetland to account to him and his co-partner for the balance in his hands after paying debts of said firm, but the defendant, Joseph C. Swetland, has neglected hitherto and still neglects and refuses to pay over or to account to plaintiff for said balance. Byrom L. Swetland refuses to join as plaintiff in the prosecution of this action ; and for this reason he is made a co-defendant with the said Joseph C. Swetland.”
    The contract, a copy of which is given in the petition, was reduced to writing and executed by the parties. It was attached to the footing of the inventory of the stock of goods, fixtures, and debts due the firm, in the invoice book, and with that footing is as follows:
    “ Amount of goods brought over as within $18,604 88 .
    “ Amount of store fixtures as within . 851 73
    “ Amount of debts due the firm less 10 per cent. 1,383 13
    $15,839 74
    “ Contract.
    “For value received, we the subscribers, hereby sell, assign, transfer and set over unto Joseph C. Swetland all our right, title and interest to the within inventory of a stock of goods, wares and merchandise above mentioned, including all debts, book accounts, notes, judgments, dioses in action of every name and nature due said firm, appertaining to or growing out of any dealings of said firm from the commencement of our said business up to this date, and we further authorize and empower said Jos. C. Swetland, his heirs or assigns, to enforce the collection of all claims due said firm in his or our name as fully as we could ourselves without recourse to us. Said amount to be paid by Joseph C. Swetland to our creditors by way of a compromise, as he, the said Swetland, may be able to obtain said claims against us as a firm, the sum to be paid not to exceed the sum above mentioned, 115,889.74. Balance to be paid to us.
    “ Mount Vernon, Ohio, August 16,1871
    “ Byrom L. Swetland.
    “ E. Douglas Bryant.
    “ Jos. C. Swetland.”
    (Five cent stamp.)
    The prayer of the petition is for judgment against Joseph C. Swetland, for the alleged balance in his hands, with interest from January 1,1872.
    The answer of Joseph C. Swetland contains two defenses. The first alleges, that under the written contract referred to in the petition, he became a trustee for the benefit of the creditors of the firm of Bryant & Swetland, that he converted the assets transferred to him into money, and applied the whole proceeds to the payment of the debts of the firm, and that nothing remained to pay the expenses of executing the trust, or any compensation for his services in that behalf.
    The second defense is as follows:
    “ For a second defense the defendant says that the writing set out in the petition purporting to set forth the contract between Edwin D. Bryant, Byrom L. Swetland and this defendant, does not state the terms and conditions of the agreement actually made between said parties; by mutual mistake, oversight and omission, in reducing said contract to writing, the real understanding and agreement of said parties was not expressed therein. This defendant avers that the real contract made between said parties and attempted to be expressed in said writing was that this defendant was to take said goods at the invoice price thereof, less ten per cent.; he was to pay for the same by paying the debts of said Swetland & Bryant. This defendant was to have the privilege of compromising said debts with the creditors of said firm, and any discounts he might be able to obtain thereon were to inure to the benefit of this defendant. This defendant says that said stock of goods were the remnants of four old stocks of goods, and were not worth to exceed fifty cents on the dollar of the invoice price thereof; that the only consideration that induced this defendant to take said goods at the invoice price thereof less ten per cent, was the fact that it was the understanding and agreement that he was to have the benefit of any discounts obtained on claims against said firm, and it was understood at the time of signing said paper the amounts of said discounts. By reason of the mistake aforesaid said writing is silent as to who should have the benefit of said discounts. To express the agreement of the parties thereto said writing should state that this defendant was to have the full benefit of all discounts obtained on claims against said firm. The defendant says there is manifest error in stating the amount of the debts due the firm of Swetland & Bryant assigned to this defendant to be §1,383.74. The invoice thereof shows the said debts amount to $1,425.69 less ten per cent, equals $1,283.74 instead of $1,383.74, as stated in said writing. This defendant further says that there is ambiguity in said written contract in the expression therein, ‘ balance to be paid to us.’ The other expressions in said writing do not make it apparent what balance is referred to, whether the balance between the invoice price of said goods less ten per cent, and the face of the debts of Swetland & Bryant, paid by this defendant, or the balance between the invoice price less ten per cent, of said goods and the amount this defendant paid to settle said debts. This defendant says, that by said expression in said contract, 1 balance to be paid to us,’ was meant the balance, if any, after taking the face of the debts of Swetland & Bryant adjusted by this defendant from the invoice price less ten per cent, of said goods. This defendant denies that he only paid H. B. Clafflin & Co. $3,778.87 in settlement of their claim against Swetland & Bryant, but avers on the contrary that he paid said claim in full $5,038.49. This defendant denies that Swetland & Bryant only owed J. W. Hartley & Co. $3,250, and that he only paid. $2,650 to settle the same; this defendant avers that there was due to J. W. Hartley & Co. $4,086.40, and that he paid the sum of 3,586.40 to settle the same. The defendant says lie has paid and discharged in full the indebtedness of Swetland & Bryant to the amount of $15,839.74 and more. Ah itemized list of said indebtedness and the amount paid by this defendant in satisfaction thereof, is set out in his first answer filed herein, and having paid all he agreed to pay he denies that he is indebted to the firm of Swetland & Bryant or to this plaintiff in any sum whatever. The defendant says that he did not know that said contract did not express the real contract between the parties thereto, and he only discovered the same as herein set out until a short time prior to filing his first answer herein. Wherefore defendant prays that on a final hearing of this case the said written instrument may be corrected so that the same will express the real agreement made between this defendant and plaintiff and Byrom L. Swetland as set out in this answer, first by showing the correct amount with which defendant should be charged for accounts and turned over to defendant; second, by making said writing state fully that this defendant shall have the benefit of all discounts obtained on the claims settled bjr this defendant for Swetland & Bryant; third, that the ambiguity in said contract in the expression, ‘ balance to be paid to us,’ may be corrected, and the real balance meant by the parties may be determined by the court; and that this defendant be discharged from any liability to the plaintiff, or to the late firm of Swetland & Bryant, with his reasonable costs.”
    A reply was filed, which, in substance, denies generally the allegations of the answer, and avers that the alleged cause of action therein set forth, to have the mistake in the written contract corrected, and the instrument reformed so as to conform to the actual agreement made by the parties, did not accrue within ten years next before the commencement of the action, nor within ten years next before the filing of the answer.
    The defendant Byrom L. Swetland, also filed an answer, by which he denies that he refused to unite with the plaintiff in the prosecution of the action. He avers that there has never been a settlement between him and the plaintiff, of the partnership affairs and business of the firm of Swetland & Bryant, and that upon a settlement thereof a large sum will be due him from the plaintiff. He. further avers that the plaintiff is insolvent, and that unless his rights are protected in this case he will be without remedy, and he prays, that he be made a party plaintiff, and whatever judgment is recovered against Joseph C. Swetland may be rendered in favor of the firm of Swetland & Bryant, and that an account be taken between the parties, and their rights as between themselves to the fund recovered, be determined.
    The averments of this answer are controverted by a reply.
    In the court of common pleas, the plaintiff recovered a judgment against Joseph C. Swetland, and all questions between the copartners were reserved by that court for future determination. Joseph C. Swetland appealed; and upon the trial of the cause on appeal, the circuit court stated its conclusions of fact as follows :
    “ First — That Joseph C. Swetland purchased the stock of goods, fixtures and accounts of Swetland & Bryant and agreed to pay for the same the sum of $15,839.74, less ten per cent, discount, and less any discount he might be able to obtain from the creditors of Swetland & Bryant on their several claims in compromising the debts of the firm of Swetland & Bryant, and the court find that the liabilities of said Swetland & Bryant at the date, of said sale were $15,657.58.
    “ Second — The court further finds that the words 1 Bal. to be paid to us ’ were put into said contract after it had been signed by Byrom L. Swetland and before it was signed by E. Douglas Bryant, plaintiff, and the court finds that these words were understood by the parties to said contract to refer to any balance there might be between the contract price of goods, etc., and the aggregate amount of liabilities of the firm of Swetland & Brj^ant, and that there was no balance of the purchase price of said goods over the aggregate amount of liabilities of said firm, and that plaintiff is not entitled to recover any sum from defendant, Joseph C. Swetland, for any balance of price of goods, etc., over debts of the firm of Swetland & Bryant.
    “ Third — The court further finds that said contract by the mutual mistake and omission of the’ parties fails to express the contract and agreement of the parties in relation to the purchase and payment of said goods, etc., by the said Joseph C. Swetland, in this, to wit: That it was mutually agreed between the parties at .the time said contract was made and as a part thereof, that Joseph C. Swetland was to have all discounts he could obtain from the creditors of Swetland & Bryant, on the payment of the claims of said creditors, and that said contract ought to be reformed so as to express the agreement of the parties in this behalf. And the court finds that said Joseph C. Swetland is entitled to all discounts obtained from the creditors of Swetland & Bryant on their claims against said firm under said contract when reformed to express the agreement of the parties.
    “ Fourth — The court further finds that more than ten (10) years had elapsed between the making of said contract of sale of said goods, etc., by Swetland & Bryant to the said Joseph C. Swetland and the bringing of this suit.”
    Thereupon, the court adjudged that the “ contract be reformed, and be made to provide that Joseph C. Swetland is to have all discounts he may be able to obtain from the creditors of Swetland & Bryant on their claims against said firm ; and that said contract so reformed be taken and held to be the contract of the parties hereto. It is therefore considered by the court that there is nothing due from the defendant, Joseph C. Swetland, to the plaintiff upon the cause of action set forth in plaintiff’s petition, and that said petition be dismissed, and that the defendant recover of plaintiff his costs in this behalf expended, taxed at $-, and it is ordered that plaintiff pay his own costs, taxed at $-, and this cause is remanded to the court of common pleas for execution.” The plaintiff in due time filed his motion to set aside the findings and decree of the court and grant a new trial, which was overruled. To this ruling of the court the plaintiff excepted, and his bill of exceptions, containing all the evidence, was duly allowed and filed; and he prosecutes this proceeding in error to obtain the reversal of the judgment of the circuit court.
    
      Adams Irvine and Abel Hart, for plaintiff in error.
    The reformation of the contract by the circuit court, defeats the contract as made by the parties. The reformation was not made on sufficient testimony. Potter v. Potter et al., 27 Ohio St. 84; Pollock v. Warrick, 10 S. E. R. 699; Gray v. Kerr, 46 Ohio St. 652.
    The statute of limitations is a bar to the reformation of the contract. Section 4985.
    Since the passage of the code, limitations are express, and. the right to have the contract reformed is limited to ten. years, because not otherwise specifically limited in the statute. If plaintiff in error had commenced his action within ten years this might have saved defendant’s right, but not otherwise. Wood on Limitation, page 602, sec. 282; Gray v. Kerr, 46 Ohio St. 652. Mistake or accident will not interfere with the running of the statute since the passage of the code, and the case of Longworth v. Hunt, 11 Ohio St. 194, et seq., and Long v. Mulford, 17 Ohio St. 484, were actions that accrued before the passage of the present statute of limitations, and both contained charges of fraud. In this case there are no charges or suspicions of fraud. Paschall v. Hinderer, 28 Ohio St. 568. A defense to an action is one thing; affirmative relief is another. That a party did not know of an alleged defect in a contract is of no avail. The defendants could not have the contract reformed, either in an- action upon it, or to defend an action brought by another, after ten years from the making and delivery of the contract. Oakes et al. v. Howell, 27 Howard Practice Rep, page 147; Wood on Limitations, pages 604, 806; sec. 5077, Rev. Stats.
    
      John B. Waight and W. O. Culbertson, for defendant in error.
    
      1. Is the finding of the court supported by the evidence ?
    From an examination of the testimony, set forth in the bill of exceptions, it is manifest, we think, that the mistake alleged was made out to the satisfaction of the court by “ clear and convincing proofs,” and not by a mere preponderance which is only required to sustain the findings of trial courts in ordinary civil cases.
    The rule of law as to degree of proof required in eases of this kind, to warrant the finding, was carefully observed and clearly applied by the court below in this case. Under a well settled rule, applicable to the review of facts on error, this court will not disturb the finding of the court below, unless the same was manifestly unwarranted by the evidence. In this case it must affirmatively appear from the record, that; the court below clearly disregarded the rule requiring “ clear and convincing proof” to maintain the issue, and that the findings can only be sustained on the theory that the court only required the issue to be proven by a preponderance, before this court will disturb the findings of the circuit court.
    II. On behalf of the defendants, we insist: 1. That the right to institute and maintain a bill in equity to reform a written instrument, on account of a mistake, is not barred in ten years. Clements v. Noble, 40 Ohio St. 41; Riddle v. Krienbiehl, 12 La. Ann. 297; Lastrapes v. Roquet, 23 Id. 68; Maders v. Lawrence, 49 Hun 360; Conner v. Smith, 88 Alabama 300; Buswell on Limitations, sees. 142, 143.
    2. Should it be held that ten years constitute a bar, where suit is brought and affirmative relief is demanded, to correct a mistake in a written instrument, yet we insist that in an action founded upon the contract, the mistake in the writing may be pleaded, by way of defence in equity, as long as a cause of action exists on the writing. In courts of equity a distinction is frequently made between suits brought to enforce a demand and suits brought to relieve against a demand. Justice v. Lowe, 26 Ohio St. 372; Ins. Co. v. Tulledge, 39 Ohio St. 240; Pomeroy’s Equity Jurisprudence, vol. 2, sec. 854; Wood on Limitations, page 117, sec. 58; McNair v. Ragland, 1 Dev. (N. C.) 533; Bidwell v. Astor Ins. Co., 16 N. Y. 263; Wood v. Ford, 29 Miss. 57.
    3. As long as a cause of action exists on the written contract, the defendant is not estopped from setting up, by way of defense at law, a parol agreement, made at the same time, as part of the transaction, although an action on such parol agreement is barred. Wood on Limitations, page 603, sec. 282; Monroe v. Hanson, 9 Ga. 398; Evans v. Younge, 8 Rich. S. C. 113; Richardson v. Blaight, 8 B. Mon. (Ky.) 580.
    4. In a court of equity the statute of limitations has no binding force by its own effective force, but it is only adopted and applied by analogy to cases within what is considered its reason. Bigelow’s Exr. v. Bigelow’s Admr., 6 Ohio 96; Ridley v. Hellman, 10 Ohio 524; Hayward v. Elliott Nat. Bank, 96 U. S. 11; Lawrence v. Trustees, 2 Denio 577; Angell on Limitations, (5 ed.,) sec. 26, note 2.
    5. The mistake in this case was not discovered until a short time before Joseph C. Swetland filed his pleading asking a reformation of the writing as averred by him, and not denied. Time in equity only begins to run from a discovery of the facts. Longworth v. Hunt, 11 Ohio St. 194, 653; Long v. Mulford, 17 Ohio St. 484.
   Williams, C. J.

The plaintiff’s action was founded upon the written contract, and sought the recovery of a money judgment for the amount due thereon. From the inventory, which, by reference, became a part of the contract, it appears that the property sold by the firm of Swetland & Bryant to Joseph C. Swetland, after deducting ten per cent, from the invoice price, amounted to the sum of $15.839,74. . The contract contemplates that the whole of this amount might be required to pay the creditors of the firm, and it provides that the sum to be paid them shall not exceed that amount, which imports an obligation on the part of the purchaser to pay that amount to them if necessary to settle their claims. The contract also contemplates that it might not be necessary to use the whole purchase-price of the goods for that purpose, but that Joseph O. Swetland might, by compromises with the creditors, be able to take up their claims by the payment of less than the amounts actually owing them by the firm, in which event, a balance would remain in his hands, after the claims of all the creditors should be satisfied. This balance, the contract provides, shall be paid to the firm-; and the action of the plaintiff below was prosecuted to recover an alleged balance so arising. The petition, by proper aver,ments, shows that the claims of all the creditors of the firm of Swetland & Bryant have been satisfied and settled, and that the total amount paid by Joseph C. Swetland for that purpose, was $12,668.16, leaving a balance due the firm from him under the contract of $3,215.97.

The answer admits the execution of the contract by the parties, but denies "that Joseph C. Swetland paid no more than the amount alleged in the petition, in satisfaction of the claims of the creditors, and avers that he paid them the whole purchase-price of the property. The further answer, in substance, is, that it was part of the agreement between the parties, that Joseph C. Swetland should have the benefit of all the discounts he might be able to obtain from the creditors on th§ir claims against the firm, which stipulation, it is alleged, was by mistake, omitted from the written contract; and the answer accordingly prays for the reformation of the instrument, by correcting the alleged mistake. And it is alleged that if the contract should be so reformed there would be nothing due the firm. To this part of the answer the plaintiff replied, controverting its allegations, and pleading the statute of limitations in bar.

The court of common pleas found the issues for the plaintiff, and rendered judgment in his favor. This was an adjudication adverse to the defendant’s claim for the reformation of the instrument, from which he might properly appeal. The appeal, however, did not open up for re-trial in the appellate court, the legal issues determined in favor of the plaintiff by the court below. It operated only to suspend the enforcement of the judgment until the appeal should be determined. Buckner v. Mear, 26 Ohio St. 514. But the defendant prevailed in the circuit court, and, there obtained a decree reforming the contract. If that decree is sustained, it defeats the judgment of the lower court and ends the controversy. If it should not be, the judgment of the court of common pleas will remain operative, and may be carried into execution. The record of that court is not brought before us. This proceeding brings in review only the judgment of the circuit court on the equitable case for the reformation of the contract, and presents no substantial ground for disturbing that judgment, unless the statute of limitations, as pleaded by the plaintiff, constitutes a bar to the defendant’s claim for the relief awarded him.

It is firmly settled in this state, that the statute of limitations applies to all civil actions, whether they be such as before the adoption of the code of civil procedure were called actions at law or suits in equity, except certain specified actions which the statute expressly exempts from its operation ; and there can be no doubt, that if the defendant had bjr a separate action sought the relief he obtained upon his answer, that action would be subject to the provisions of the statute prescribing the time within which eivil actions may be commenced. And the only question in this case is, whether the statute is applicable where that relief is sought by answer filed in an action brought to enforce the contract.

Counsel for the defendant contends, that since the only effect of the reformation of the instrument, as demanded, is to defeat the plaintiff’s action, the answer in this respect is but an equitable defense, against which the statute of limitations does not run; and in support of this position, 2 Pomeroy’s Eq,, p. 320, is cited, where, in a foot-note, it is said that “ whether affirmative relief be permitted or not, the omitted verbal portion of the entire agreement may be set up by way of defense in equity, when an attempt is made to enforce the written partalone.” The note refers to Murray v. Dake, 46 Cal. 644; Quinn v. Roath, 37 Conn. 16, and Jervis v. Berridge, L. R., 8 Ch. 351. We have examined these cases, and are of opinion they do not sustain the position taken by counsel. The California case was an action of ejectment by a lessee, to recover from the lessor, possession of part of the premises described in the lease. The defendant claimed that by the agreement of the parties, the portion of the premises in his possession were to be excluded from the lease, and were included hy mutual mistake, and this fact being known at the time of the execution of the lease, it was signed as drawn, upon the agreement of the lessee that the premises he sought to recover should be considered as not included. The defendant prayed a reformation of the lease, and the question in the case was whether parol evidence of the verbal agreement was admissible. The court held that the rules of evidence do not “ exclude proof by parol testimony of fraud or mistake in the execution of a contract when a reformation of the instrument is sought; ” and, that such reformation might be had where a stipulation was omitted from the writing upon the agreement that it would he observed, and the party was endeavoring to enforce the written instrument, contrary to the stipulation so omitted. The case then, it was said, becomes one of fraud, which courts of equity will relieve against as in cases of fraud in the execution of a contract. The Connecticut case was for the specific performance of a contract to convey real estate. Upon the trial, respondent offered parol evidence to prove that at the time of the negotiation and execution of the contract, it was verbally agreed that if the petitioner failed to make a payment by a specified day, the contract should be void. The court, in holding the evidence admissible, say, that “ the admissibility of the particular species of evidence here offered is restricted to the defense of bills brought for a specific performance, and the courts, in admitting it to repel the attempt of a purchaser or seller of land to oblige the other party to the contract to perform his part specifically, have proceeded upon the just ground of inequitableness in the petitioner in striving to enforce the execution of a written contract with parol variations by regarding only the written provisions and entirely disregarding the verbal variations.” The case of Jervis v. Berridge, supra, is much to the same effect. Neither of the cases afford any aid in the solution of the question before us.

The new matter set up in the answer of the defendant, upon which he asked to have the written contract sued on, reformed,, is .not, properly speaking, a defense. It constitutes an equitable counterclaim under the code, which is a cause of action in favor of the defendant against the plaintiff, between whom a several judgment may be had in the action, and upon which the defendant may, if it be successfully maintained, obtain the relief he would have been entitled to under the former practice on a bill in equity upon the same facts. Buckner v. Mear, supra. As was said in the opinion of the court in that case: “ For some purposes a counterclaim, .whether consisting of a legal or equitable cause of action, may be regarded as an action of itself. It is not simply new matter, operative only by way of defense. It must contain facts recognized by courts of law or equity as constituting an existing cause of action, which would have entitled the defendant to a judgment or decree in a separate action. Hill v. Butler, 6 Ohio St. 207.” In Kimmel v. Pratt, 40 Ohio St. 344, it is held that the “plaintiff against whom an answer demanding affirmative relief is filed, is a defendant to a cross petition.”

Under the provisions of the code, the court at any time before the final submission of the case, may, on motion of the defendant, allow a counterclaim to be withdrawn, and the 'same may become the subject of another action; and on motion of either party made at the time it is so withdrawn, an action on the same shall be docketed and proceeded in without process. Revised Statutes, section 5089. If the counterclaim be withdrawn and made the subject of another action, or docketed as a separate action, to be proceeded in without process, there can be no doubt, we apprehend, that the statute of limitations may be pleaded in bar of the action. When not so withdrawn, the two actions are tried together, as one action, in which each party becomes in turn a plaintiff and a defendant. The provisions of the code which permit this to be done, were designed to simplify the mode of procedure and prevent multiplicity of suits. It was not their purpose to abridge the operation of the statute of limitations, or otherwise change the rules of law or equity governing the rights of the parties.

It is true, that if the defendant below succeeds in maintaining his counter claim, it operates to defeat the plaintiff’s action, and is, in that sense, a defense. But he must first establish his case for the reformation of the contract, before the defense can arise. Until reformed, the written instrument is the only evidence of the contract; and, except for the purpose of accomplishing its reformation, parol evidence is inadmissible to show that the agreement was different from that therein expressed. And unless the contract be reformed, the plaintiff is entitled to recover upon it. Judgment reforming the contract, is, therefore, necessary to create the defense; and it would seem that the plaintiff should be allowed to interpose any legal objection he may have to the granting of such affirmative judgment, and the bar of the statute of limitations is, we think, open to him for that purpose. The same reasons exist for the application of the statute, where the reformation of a written instrument is sought by way of counterclaim, as do when made the subject of a separate action.

An action to reform a written instrument on the ground of mistake, comes, we think, within the class provided for by section 4985, of the Revised Statutes, which limits the time within which the same may be commenced, to ten years after the cause of action accrues ; and the statute, we hold, may be set up in bar, as vYell, when such reformation is sought by answer in an action brought to enforce the instrument.

The cause of action accrues, in such cases, upon the execution of the instrument, and the time when the statute begins to run is not postponed to the discovery of the mistake, as it is to the discovery of the fraud, in actions for relief on that ground.

The statute of limitations, it is well settled, is applicable to a set-off; the general rule being, that “if a defendant pleads a set-off, the plaintiff may reply the statute.” Wood on Limitations, p. 601; Russell on Limitations, sec. 141. This is recognized as the rule in McEwing v. James, 36 Ohio St. 152. But it is there held, that the statute “ ceases to run •against the set-off from the date of the commencement of the action in which it is pleaded.” We see no reason why the principle of that decision should not apply to a counterclaim. But it does not aid the defendant, for it is shown, by the facts found by the circuit court, that the defendant’s cause of action for the reformation of the contract, accrued more than ten years before commencement of the plaintiff’s action.

The judgment of the circuit court is reversed, and the counter claim dismissed. And, as this disposes of the case appealed to that court, the cause will be remanded to the court of common pleas for the execution óf its judgment.

Judgment accordingly.  