Schillinger v. Kratt

.Prayers & Instructions to the Jury: Pleading & Evidence : Set ope. — In an action on a promissory noto and pica of sot-off, instructions foundccl altogether upon admissions of the execution and non-payment of the note declared on, and not referring in any way to evidence offered under the plea of set off, are bad. And where a portion of the testimony offered tended to support the plea of set off, but other portions of it, if believed by the jury, may have been sufficient in tlioir judgment, supported by a proposition of law properly deducible therefrom, to have established a state of case which would have defeated that defence, a prayer based upon the evidence under the pica of set off alone is also bad.

Appeal from the Court of Common Pleas of Baltimore city: This action was instituted by Martin Ilratt, the appellee, ©n the 23d of February, 1863, The declaration contained the common counts, and one count on a promissory note.— The appellant, Henry ScMllinger, pleaded the general issue- and set off; the appellee replied, and issue was joined. Exception. The facts of the case are these: Kratt offered in evidence a promissory note, drawn by ScMllinger., for §300,. the signature to which -was admitted, and then rested láscase. ScMllinger then offered evidence to maintain his plea, of set offy and proved that he had purchased, during the month of June, 1860, various articles of household furniture for Kratt, amounting to about $300 in valuethat ho, (ScMllinger*) had paid for them with his own proper money, and that they were delivered to and received and' used by Kratt; — - Kratt then proved that he had married Schillinger’s stepdaughter in June, I860, but that ScMllinger was opposed to-the match,, and, also, that he was opposed to Ms wife’s giving' anything to her daughter at her marriage, and, also, that when the promissory note offered in evidence was presented to ScMllinger for payment, he got angry, and denied that there was any indebtedness from him to Kratt, because he-had purchased and paid for the property hereinbefore spoken of as being delivered to, and received and used by, Kratt. Mrs. Kratt died in August, 1861, shortly after the note wa& presented to ScMllinger for payment. The evidence as detailed in the foregoing statement, having been given to the jury, the plaintiff offered the following prayers: 1st. That if the jury shall find from the evidence that the defendant made and delivered the note offered in evidence in this case, dated March 5th A. D.'1860, payable one year after date, and that the said promissory note is still unpaid* then the plaintiff is entitled to recover. 2d. That there is no sufficient evidence in the case of anj payment on account, of said note. And the defendant offered the following prayer; Til's defendant in this ease is entitled to set off against tlie plaintiff’s claim any amount which the jury may believe from ¡lie evidence is due and owing from the plaintiff to the defendant and in making up their verdict the jury may •credit the defendant with whatever amount they may find due to the defendant from the plaintiff, and if they find that a sum equal to the whole amount of the plaintiff’s claim is •due by tlie plaintiff to tlie defendant, then their verdict should be for the defendant. The Court below (Kino, J’.,) granted the plaintiffs’ prayers, and rejected the prayer of the defendant, to which ruling of the Court the defendant excepted, and the verdict and judgment being for the plaintiff, appealed to this Court.