
    Mills v. David.
    In an action of assumpsit on an appeal from, a justice of the peace, a defendant may set up a defence to disprove the plaintiffs’ claim by showing the real character of the transaction, although it also proves that the plaintiff owed the defendant an amount in excess of the justice’s jurisdiction.
    
    The plaintiff bought lumber of the defendant, upon which he made advances' When the lumber was received, plaintiff claimed it was of an inferior quality and sold it, crediting the defendant with the proceeds. Suit was brought before a justice of the peace to recover back the difference between the amounts advanced and the proceeds of sale. On appeal from the judgment of the justice, the defendant offered to prove the amount and quality of the lumber shipped, for the purpose of showing a claim of set-off. This offer was refused because the affidavit of defense filed showed that the amount claimed as a set-off was -in excess of the justice’s jurisdiction. Held, that this evidence should have been admitted, not to establish a set-off, but to destroy plaintiff’s cause of action; and the j udgment was reversed with a new venire.
    Oct. 10, 1888.
    Error No. 182, Oct. 7, 1888, to C. P. Lawrence Co., to review a judgment on a verdict in an action of assumpsit on an appeal from a judgment of an alderman, by Tucker David against P. A. Mills, at Sept. T. 1885, No. 13.
    The evidence was to tbe following effect at the trial, before Hazer, P. J.:
    - David, through information received by one Hoyt, offered to purchase some sycamore lumber at a specified price, and the offer was accepted by Mills. David made some advances on his contract to help Mills to get out the lumber. When the lumber reached David, he claimed it did not come up to the grade agreed upon, and sold the same, giving Mills credit for the net proceeds. This suit was for the difference between the amounts advanced, freight charges, etc., and the net proceeds of the lumber sold. The defendant claimed that the lumber delivered was worth more than the advances and charges made by the plaintiff. The justice gave judgment for the plaintiff for $300 and costs. The transcript of the justice showed “ defendant claims a set-off of $515, and a right to recover the difference.” An affidavit of defense was filed, but was subsequently lost, so that its allegations do not appear except by the statements made by counsel and the court in the offers of evidence helow. The pleas were “ non-assumpsit, set-off, etc.”
    Plaintiff’s counsel first offered the deposition of Tucker David and Gabriel Hoyt. Objected to by the defense — to the reading of the depositions; that there is no counter affidavit denying the allegations in our affidavit of defense. The Court: The affidavit of defense being bad for uncertainty, the objection to further proceedings on the part of the plaintiff overruled. Bill of exception sealed. [1]
    Plaintiff’s counsel then read depositions offered, and offered to read the letters attached to said depositions, which are referred to therein and marked exhibits. Defendant’s counsel objected to the letters, that they are not pertinent and not competent, that there is not any evidence that this man Hoyt is an agent of Mills. The Court: "We will admit it. Bill of exception. [2]
    The plaintiff then gave in evidence the following statement, as taken from book of original entries, and rested :
    New York, November 20,1883.
    Me. P. A. Mills, New Castle, Pa.
    In Account with Tuckee David,
    1883, July 30, To cash remitted you............. $243.60
    Aug. 16, To “ “ ............ 300 00
    “ 20, To “ “ ............. 99.69 $643.29
    “ 20, To cash freight cars Nos. 416, 436, 5910 . $196.20
    “ 20, To cash cartage into yard at Jersey City . 15.66
    “ 25, To cash cartage from Jersey City to N. Y. 43.68
    Sept. 12, To cash cartage to steamer....... 30.00
    “ 12, To cash storage, labor, etc........ 30.36 315.90
    “ 15, To cash freight cars Nos. 3393, 4400 .... $126.80
    “ 15, To cash cartage into yard at Jersey City . . 11.65
    “ 15, To cash cartage from Jersey City to steamer 29.52
    $1127.16
    CR.
    Aug. 20, By net proceeds Sycamore, as per account of sales . . $279.01
    Oct. 9, By net proceeds Sycamore, as per account of sales . . 474.84
    Nov. 19, By net proceeds Sycamore, as per account of sales . ■ 157.82 911.67
    Balance due Tucker David . . • . . . . $215.49
    Defendant offered to show the amount of lumber shipped, for the purpose of showing claim of set-off. Objected to by plaintiff’s counsel, that, under their affidavit of defense, they claim that they are entitled to $800.00 and some odd dollars, as a difference of set-off, and that amount being beyond the jurisdiction of the justice of the peace, they could not come in and claim it here. Objection sustained. Exception sealed. [3]
    
      Defendant’s counsel then offered to prove, by the witness on the stand, that the lumber was first-class lumber; that there was not a blemish in a single board that was shipped ; to show that the claim set up here by the plaintiff is unjust, that his statement here is untrue.
    Plaintiff’s counsel objected to the offer so far as it appertains to the set-off in this case, because the account was still in dispute. If this lumber was good, Mr. Tucker David must pay for it. He must pay more than $300.
    The Court: I think that offer is right in the line of your set-off, as set out in your affidavit of defense, and that is clearly not in the jurisdiction of the justice when the suit was commenced. Being in that line, it would not be admissable at this stage of the case. [4]
    Verdict and judgment for plaintiff for $245.35.
    
      The assignment of errors specified the action of the court, 1, 2, in admitting plaintiff’s offers of evidence, quoting the bills of exceptions ; 3 and 4, in excluding the defendant’s offers of evidence, quoting the bills of exceptions.
    
      R. B. McComb, for plaintiff in error.
    The effect of the rulings of the court was not to allow the defendant to offer any defense.
    The defendant’s claim of set-off did not exceed $300 over the plaintiff’s account, and should have been admitted.
    
      W. H. Falls, for defendant in error.
    -The objection to the depositions, if sustained, would have been an admission that the justice had jurisdiction of amounts in controversy in excess of $300. The letters were a part of the depositions, and showed the agreement.
    A justice has no jurisdiction of a set-off when that set-off claimed is in an amount in excess of his jurisdiction. Milliken & Co. v. Gardner, 37 Pa. 456; Collins v. Collins, 37 Pa, 387; Brown v. Quinton, 2 Clark, 169.
    If the justice had no jurisdiction, the common pleas had none, on appeal. Wright v. Guy, 10 S. & R. 227; Collins v. Collins, 37 Pa. 388; Walden v. Berry, 48 Pa. 456; Diehm v. Snell, 119 Pa. 316; Herrigas v. McGill, 1 Ashmead, 152.
    A party cannot remit a portion of the claim, so as to bring the balance within the jurisdiction of a justice. Bower v. McCormick, 73 Pa. 427.
    Oct. 29, 1888.
   Green, J.,

The plaintiff purchased lumber from the defendant at a fixed price per thousand feet. Having paid to the defendant some money, and having paid also some cartage and other charges, he brought the present action before a magistrate and sought to recover a sum of money wjhich he claimed was due from the defendant upon a statement of account made by himself. In this statement, he does not credit the defendant with the price of the lumber which he had received from the defendant according to tbeir written contract, but with certain sums of money which he indicates as proceeds of sales — these amounts being considerably less than the contract-price of the lumber, are not sufficient, in the aggregate, to liquidate the amount charged by the plaintiff against the defendant for remittances of cash and charges paid, and in this manner an apparent balance of $215.49 is due by the defendant, although he was the seller of the lumber. The plaintiff’s statement of the account does not indicate the quantity of lumber received by the plaintiff from the defendant, but simply credits defendant with certain sums “ per acct. sales.” Of course, if the plaintiff did not account for all the lumber received, or did not account for all the lumber received, or did not account for the correct prices, the account would not be correctly stated.

Whether the defendant owes the plaintiff anything or not, therefore, depends entirely upon the correctness of the account stated by the plaintiff. The plaintiff’s statement was given in evidence, and certain letters passing between the parties which contained the contract under which the lumber was sold by the defendant to the plaintiff. Then the defendant offered to prove what quantity of lumber he had sold to the plaintiff, but his offer was rejected, because it would show that, instead of the defendant owing the plaintiff the amount claimed, the plaintiff would owe the defendant an amount exceeding the jurisdiction of a justice. The offer was treated as an offer to prove a set-off, but this was an entire misconception of the true character of the evidence proposed. It was the fault of the defendant’s counsel to present the offer in that way, but that circumstance does not alter the legal substance and character of the offer. It was certainly competent for the defendant to prove the real true character of the transaction, and if the actual facts of the case defeated the plaintiff’s claim by disproving his cause of action, the proof was undoubtedly competent. We are clearly of opinion that the rejected offer should have been received, not to establish a set off, but to reduce or destroy the plaintiff’s cause of action, and therefore the judgment must be reversed. We sustain the third and fourth assignments of error, and dismiss the first and second-.

Judgment reversed and venire de novo awarded.  