Tuttle v. Wilson

Dickinson, J.

The defendant having in his answer pleaded, as a counterclaim, an indebtedness due him from one Richards, and which, as was decided on a former appeal in this action, ( 33 Minn. 422 ; 26 N. W. Rep. 864 ,) the defendant was entitled to avail himself of in this action, a written stipulation was entered into by the attorneys for the respective parties, to the effect that the defendant should, within 30 days from the making of the stipulation, furnish to the plaintiff’s attorney a copy of the items constituting such counterclaim. When the cause came on for trial, more than four months after the making of the stipulation, the items of the account had not been furnished, and for this reason the court sustained the plaintiff’s objection to the receiving of proof of such account. The ruling of the court was right. By the statute, (Gen. St. 1878, c. 66, § 105,) while it is not necessary to plead the items of an account, the party seeking to avail himself of a matter of account is required, within 10 days after demand, to deliver to the adverse party a verified copy of it, “or be precluded from giving evidence thereof.” The stipulation dispensed with the necessity for a demand, and made absolute the duty of delivering the copy of the account referred to in the answer *234 within the stipulated time'. This not having been done, the defendant, not being relieved from his default by order of the court for cause shown, was properly subject to the consequences prescribed in the statute for such default.

Order affirmed.