John Dunlap, plaintiff in error against Evan Miles, 4 Yeates 366

TilghmaN, C. J. Evan Miles brought an action against John Dunlap ; his declaration contains a single count on an insimula compiitasset. The defendant pleaded non'assumpsit and payment, with leave, &c. On the trial, the defendant, not having given legal notice of any such matter, offered to give the following matter in evidence, under the plea of non assumpsit. That Evan Miles, Richard Miles and John Dunlap had been partners, in carrying on the manufactory of bar iron.

After the partnership had been carried on some time, it was agreed to dissolve it; and Dunlap agreed to purchase the interest of Richard Miles in the estate where the manufactory was carried on.

Accordingly, on the 7th July 1797, a deed was executed, to which the same Richard and John were parties, whereby the latter bound himself to pay the former a certain price for his interest in the said estate, to repay him all the money expended by him in the said concern, and to pay or exonerate him from the payment of all demands to be brought against the said partnership, and to pay Evan Miles and his wife for their trouble in managing, at the rate of $300 a year for the time they had been engaged in the management of the business of the said partnership.

That Evan Miles was the person who transacted the business, and kept the books of the partnership ; and that the said John Dunlap, placing full confidence in his integrity and accuracy, and believing the books to contain a true statement of the affairs of the company, entered into the agreement above mentioned, by which Evan Miles was to have $300 a year in lieu of his share of the profits of the partnership; after which the said Evan made entries in the partnership books of sundry debts amounting to 300I., which the defendant below was obliged to pay.

That at the time of the said agreement, all the money which appeared by the books to have been expended by Richard Miles was 1414I. 3s. 9d., and that Evan Miles afterwards presented his father’s accounts from his father’s books, amounting to 1972I. 9s. 4d., which Dunlap believed he had been charged with by Richard Miles; and that this transaction was unknown to him at the time he settled the account with Evan Miles on 23d May 1799, on which this suit is brought.

It is to be observed, that although Evan Miles was no party to the agreement before mentioned, yet he adopted it by assenting to accept the $300 a year; and this charge of $300 a year is the principal item in the settled account, on which the suit is brought. *The Circuit Court rejected this testimony,and the then r* defendant took an exception to their opinion. Whether the evidence was, or was not admissible, is the point now for decision. The courts have allowed a very large field for the admission of evidence, under the plea of non assumpsit.

Whatever tends to prove that at the time of the suit brought, there was no existing assumption, has been received in evidence. Accordingly, evidence has been given of the infancy of the defendant, payment, or a release. Let us consider the nature of the evidence offered by the defendant, in the case before us.

He says, he entered into a contract, under an idea that the books kept by Evan Miles, contained a perfect account of the affairs of the company; but he does not say, that the said Evan ever assured him, that they contained a perfect account, or in any manner deceived him, or made a misrepresentation to him, or that the charges introduced into the account, since the agreement, are unjust. The contract was made on the 7th July 1797, and almost two years afterwards, on the 23d May 1799, he settled the account on which the suit was brought, and signed the settlement.

Whether a court of equity under such circumstances would afford relief, there is no occasion now to determine; for the point is, was the evidence admissible or not, in a court of law, under the plea of non assumpsit. I am satisfied, that the matters offered in evidence did not at law affect the settled account, on which the suit is grounded, any more than they would have affected a promissory note, given for the balance of an account.

If the circumstances of the case afforded ground for relief in equity, Dunlap ought to have given notice of the special matters, in consequence of which under our practice, he might have brought forward all his equity, under the plea of payment. I am not for extending the admissibility of evidence, under the plea of non assumpsit. It has been carried far enough, and in my opinion, much too far already; so far as to involve plaintiffs in difficulties on trials, without any possibility of knowing the matter on which defendants rest their defence.

I am of opinion, that the evidence was properly rejected by the Circuit Court; and that the judgment be affirmed.