
    
      PARKER vs: STARKWEATHER:
    
    Appeal from the court of the first district.
    The defendant can only offer in compensation what the pjaintiff owes him.
    The plaintiff does not owe to the defendant the sum offered in compensation, when the defendant owes him on another account a larger sum, which extinguishes it,
   Porter, J.

delivered the opinion of the court. The plaintiff sued the defendant, claiming 850 dollars for the rent of a house and blacksmith’s shop.

The defendant pleaded that he owed the plaintiff but 300 dollars for rent, and that the plaintiff was indebted to him in a larger amount, viz. the sum of 1094 dollars, for the balance of which he prayed judgment.

To this, the plaintiff filed an answer, in which he alleged the defendant to be indebted to him for other matters than those set forth in the petition, in the sum of 851 dollars and 95 cents

The judge below refused leave to the plaintiff to give any evidence in support of the matters set out in the plea in compensation On the cause coming here on appeal, the case was remanded with directions to the judge to admit the plaintiff to prove the account which he offers as compensation to the defendant’s demand in reconvention.

When the cause was on trial the second time, the defendant requested the court to charge the jury, that the plaintiff could not compensate his account filed to the reconvention of the defendant, to any other or greater amount than for the balance claimed by Starkweather. The judge refused to give such a charge, and the defendant appealed.

The effect of the charge asked for, would be, that instead of the plaintiff being able to set up the whole of his demand against that of the defendant, viz. the 850 dollars claimed in his petition, and the 851 dollars claimed by him in his answer to the defendant’s demand in reconvention and plea in compensation, he could only oppose a sum sufficient to extinguish the balance the defendant averred to be due him. The case would then stand thus: The plaintiff claims 850 dollars. Defendant avers the plaintiff owes him 1094 dollars.— The plaintiff replies the defendant is indebted to him 851 dollars; but as the balance due the defendant, by petition and answer, is only 244 dollars, the plaintiff can only compensate that amount, and must suffer the debt set forth in the petition, to be extinguished, although the defendant owe him 606 dollars more. This argument overlooks the fact that the defendant can only rightfully compensate the demand made in the petition by what is really due to him, and that the plaintiff does not owe the defendant the amount offered in compensation by the answer, when the defendant is indebted to the plaintiff in another sum which extinguishes that set up by the defendant in his answer. The whole matter must be tried together. The attempt made here is very novel and ingenious, but it is quite incorrect, and the judgment of the court below must be affirmed with costs.

Preston for the plaintiff—Hennen for the defendant.  