
    Dill v. Knapp.
    A rule of court provided that “ the defendant shall file with his plea sworn copies of any instrument of writing, book accounts, specify items of claim, and material facts on which he relies for his defense under oath, as required in section one of plaintiff, and file his affidavit stating what amount he verily believes he is entitled to defalk or to recover from plaintiff in said suit.” In an action brought to recover the proceeds of certain oil sold by the defendants, it was charged in the affidavit of claim that the oil belonged to the plaintiff and that it had been obtained by the defendant upon an order fraudulently procured by him from the plaintiff’s agent. In his affidavit of defense, the defendant denied this charge and alleged that the plaintiff was indebted to him for damages arising out of a certain contract, previously subsisting between them, for the purchase of two oil wells, and had given him the order in question as compensation for such indebtedness. Upon the trial, the defendant offered evidence in support of these allegations. It appearing, however, that the contract referred to was in writing and that, the defendant had not filed a copy of it with his plea, the court below rejected the offer as inadmissible under the construction placed upon its oivn rule by the court. Held, not to be cause for reversal.
    The defendant further offered to show that the plaintiff was indebted to him for improving and repairing two oil wells belonging to the latter and that the order in question was given in payment of such indebtedness. The court excluded this evidence also, under the said rule. Held, not to be cause for reversal.
    Pee Green, J. — If an instrument of writing, or a book account, is to be used, as we must infer, for it is not so expressed, he shall file with his plea a sworn copy, which would imply that it is only necessary to file the sworn copy; but, as-material facts must be averred under oath, it is a reasonable construction of the rule to infer that whatever facts are necessary to connect the instrument or account with the defense must at least be stated in writing and under oath.
    
      It seems that, under such a rule, evidence is inadmissible to establish a defense which has not been set up in the affidavit of def ense filed.
    Oct. 15, 1888.
    Error, No. 58, Oct. T. 1888, to C. P. Butler Co., to review a judgment on a verdict for the plaintiff in an action of assumpsit, at June T. 1887, No. 50, A. D. ’Williams, J., absent.
    In his affidavit of claim the plaintiff below, O. G-. Knapp, averred that he was the owner of and had to his credit in the lines of the National Transit Co., United Pipe Lines Division, 904.10 barrels of crude petroleum oil; that, on April 9,1887, the defendant, John Dill, fraudulently, in disregard of the plaintiff’s rights, and with intent to cheat and defraud him of his property, procured one Wattson, agent of the Transit Co. at Petrolia, to fill out an order transferring to the defendant the 904.10 barrels of oil; and that the defendant then sold the oil to one Lewis for $641.91, and received that amount for the same, without the plaintiff’s knowledge or consent ; and refuses to pay over, etc.
    The plaintiff also filed a narr. containing the common counts. The affidavit of defense, filed with a plea of non assumpsit, contained the following averments:
    “ 1st. The defendant is not indebted to the plaintiff in any amount, and, for the purpose of this defense, denies each and every allegation in plaintiff’s affidavit of claim in this case.
    “ 2d. The plaintiff, by fraud and deceit, and upon fraudulent representations made to affiant, induced affiant to enter into a contract to purchase from plaintiff two certain oil wells for $2,000, which in fact were not worth more than $1,000. And, by reason of the false and fraudulent representations of the plaintiff, affiant was induced to add additions, repairs and expenses to said wells of about $1,500, the plaintiff having represented to affiant, prior to and at the time of the contract, that one of the wells was not tubed through nor into the oil producing sand, but that there was an anchor and a working-barrel in the well and the same was filled up to the top of the sand, and was only tubed down to the top of the sand, and was pumping on top of the sand, and, if cleaned out, was good for an eight-barrel well per day; and guaranteed said well to be a good eight-barrel well. Affiant went to great expense and cleaned out the well, and then found it was and had been tubed down to the bottom of the sand and there was no anchor or working-barrel in it; and the representations were false and untrue, and were fraudulently made by plaintiff; and, by his fraudulent representations, the contract was void. And the said Knapp gave affiant an order for the oil, for which this suit is brought, to the Pipe Line, for the purpose of partly recompensing affiant for his damage sustained and his expenses put upon said well, which he had sustained and incurred by reason of the false and fraudulent representations of the plaintiff in this case. And the defendant is not indebted to the plaintiff in this suit in any amount; but, if a fair adjustment of the matter was made, the plaintiff would be indebted to affiant in the sum of about $8,000.
    “Affiant further states that said well was not as represented by the said Knapp, upon which representations affiant has relied. But the same did not do 2-f barrels of oil per day. All of which affiant states to the best fo his knowledge, information, advice and belief.”
    Plaintiff filed á counter-affidavit, in which he denied all the allegations of fraud and false representations, denied the statement that the order for the oil was given partly to recompense defendant for his damages sustained and expenses put upon the well, and averred that he was advised that the contract with reference to the sale of the well did not enter into this suit. He further reiterated the charge of fraud in obtaining the order for the oil, and alleged that defendant owed the amount claimed in this suit and also on the contract for purchase money on the wells.
    Upon the trial, before Hazen, P. J., the plaintiff proved that Dill had obtained the order from "Wattson, had sold the oil for the price alleged in the affidavit of claim, had received the money and had not paid it wer to Knapp, and then rested.
    
      The defendant then testified,.on behalf of himself, that, on Nov. 12, 1885, the plaintiff sold him two pumping oil wells, the agreement being in writing. Objection being made, the court excluded all testimony as to the agreement and refused to admit the paper itself, because a copy had not been filed with the plea. The court also refused a motion to file the original contract at the trial, as being too late. The defendant further testified that the plaintiff had himself given him the order for the oil, and his counsel then made the following offer:
    “Defendant’s counsel"proposes to prove by the defendant that he is not indebted to the plaintiff directly or indirectly; that the amount of' oil sued for by the plaintiff was given by the plaintiff to the defendant, and the defendant received the oil in pursuance of this order given him by the plaintiff, and that the money was applied to the indebtedness that the plaintiff owed to the defendant, for the purpose of showing that this oil was given to him to recompense him for money paid out in improving his property, in running, managing and controlling his wells.”
    Objected to by plaintiff’s counsel for the reason that the affidavit of defense does not advise us of any alleged indebtedness on the part of Knapp to Dill; there is no copy of any account settlement filed; there is no defense set up here of offset, except upon a contract which has not been proved, and therefore this is incompetent and irrelevant.
    The court overruled the offer on the ground that the defendant had not complied with §2 of the rule of court, quoted in the opinion of the supreme court. [1.]
    The defendant’s counsel then offered to prove by the defendant that he had laid out and expended a large amount of money in improving and repairing the two oil wells belonging to the plaintiff, and that this order was given by plaintiff to defendant to pay or compensate the defendant for the money laid out and expended in improving the plaintiff’s property.
    Objected to by plaintiff’s counsel as incompetent and irrelevant for the reason that no such defense is specified or set forth in the affidavit of defense, and therefore no notice of any such claim of offset or demand has been given the plaintiff in this suit by the defendant, as required by the rules of court.
    The court sustained the objection, on the ground that the offer was not in accord with the requirements of the rule above recited, as shown by the pleadings. [2.]
    The defendant offered no other evidence and the jury found a verdict for the full amount of the plaintiff’s claim.
    
      The assignments of error specified, 1, 2, the action of the court in overruling the two offers of the defendant, quoting them.
    
      Lev. McQuiston, with him Wm. A. Forguer, for plaintiff in error.
    The pleadings filed in the case formed the issue, which was confined to a single proposition, distinctly affirmed on the one side anddenied on the other. The offers of testimony corresponded, in every particular, with the allegations set forth in the affidavit of defense, and were confined to the very point in issue. The plaintiff obtained the verdict because the defendant was not permitted to introduce his testimony in support of his affidavit of defense, although it gave full notice to the plaintiff of the proof intended.
    The written contract was not a material part of the defense, but was entirely collateral, and the rule of court did not require defendant to fiie a copy. The facts averred in the affidavit of' defense, however, were material and within the letter and meaning-of the rule. The matters alleged in the defendant’s offers were not in writing, as they clearly show. They were material to the issue, and their exclusion cut off his entire defense.
    
      R. P. Scott, for defendant in error.
    The rule was reasonable in its provisions and requirements and pointed out the way clearly. Defendant chose not to follow its requirements, and he should not now be heard to complain.
    A liberal discretion in construing and enforcing its own rules, should always be accorded to every court, and the exercise of that discretion should not be controlled, unless it has been clearly abused. Peck’s Ap., 11 W. N. C. 31.
    Jan. 7, 1889.
   Green, J.,

The matter contained in the first offer of proof must be taken in connection with the defense set forth in the defendant’s affidavit. If it was not admissible as a part of that defense, it was not admissible at all. Upon recurring to the affidavit, it is at once apparent that the whole substance of the defense grew necessarily out of a contract which the defendant, on the stand, admitted to be in writing, and, in the performance of which by the defendant, the plaintiff became indebted to the defendant in the manner set forth in the offer of proof. The only indebtedness alleged in the affidavit was claimed to be due for work done by the defendant in the execution of the terms of the contract which is there described. But no copy of that contract was set out in the affidavit of defense nor was any such copy filed, either with the affidavit or with the plea. The rule of court on the subject is so-defectively and ungrammatically written as to be almost unintelligible, but substantially it means that any instrument of writing relied upon by the defendant must be filed with the plea. It is not required to be set out, or even described, in the affidavit of defense, nor is any penalty of inadmissibility prescribed for non-compliance with the rule. But the court, in rejecting the offer, said that, to entitle the defendant to offer proof in regard to written instruments, the requirement of the rule must be observed. That is the construction put by the court upon its own rule, and we cannot say it was error. It was doubtless the meaning intended to-be conveyed by the rule, though it is not so expressed. Here is the-rule as printed in the paper book: “ Section 2. Defendant shall file with his plea sworn copies of any instrument of writing, book accounts, specify items of claim and material facts' on which he-relies for his defense under oath, as required in section one of plaintiff, and file his affidavit stating what amount he verily believes he is entitled to defalk or to recover from plaintiff in said suit.” By the literal terms of this rule,, an affidavit of defense seems to be required only when the defendant desires to “ defalk or to recover from plaintiff in said suit.” If an instrument of writing, or a book account, is to be used, as we must infer, for it is not so expressed, he shall file with his plea a sworn copy, which would imply that it is only necessary to file the sworn1 copy ; but, as material facts must be averred under oath, it is a reasonable construction of the rule to infer that whatever facts are necessary to connect the instrument or account with the defense must at least be stated in writing and under oath. In the present case, therefore, we interpret this rule to mean that, if the defendant has a defense which is based upon an instrument in writing, he must, if he wants to give the instrument in evidence, at least file a sworn copy of it with his plea. As this was not done, the court below was not in error in rejecting the defendant’s offer of proof, since the defense grew out of the instrument which contained the contract of the parties. The same is true of the written order for the oil, of which no copy was filed, but which is, nevertheless, embraced in both offers of proof.

The remaining part of the second offer does not appear in the affidavit of defense at all and we must assume that it was, for that reason, not admissible.

Judgment affirmed. J. C. S.  