HEISEN v. CHURCHILL et al., 179 F. 828

GROSSCUP, Circuit Judge (after stating the facts as ahove). The principal question before us is, whether the so-called admission in the notice of set-off, filed under the general issue, that the plaintiff in error and his co-defendants were partners, was so conclusive upon them that it precluded them from withdrawing the plea of set-off and also from subsequently proving (the plea of set-off being compulsorily left in the case) their other plea that they were not partners in relation to the transactions sued upon.

We are of the opinion that the matter contained in 'the plea of set-off did not prevent the plaintiff in error from supporting his special plea by showing that his company dealt with the Eondon company as a corporation and not as a co-partnership —the matter contained in the plea of set-off being open to use only as an admission and not as a matter of estoppel. And especially is this true if, under the practice of Illinois, the application to withdraw the plea of set-off (no equities having intervened) was rightly denied.

Many cases in the Illinois Supreme Court are cited by counsel for defendants in error to the point that the admission of co-partnership, unwithdrawn, was properly admitted in evidence upon the issue raised by the plaintiff in error’s denial of joint liability; Byrne v. Byrne, 47 Ill. 507, where it was said that an admission in a plea of set-off “was proper to go to the jury”; Miller v.

Miller, 16 Ill. 296, where it was said that a plea of set-off, wholly inconsistent with the -idea.. of the relation of parent and child (the action being one by a daughter against her father for services, and the defense being that there was no intention that the services should be paid for), was a circumstance for the jury to consider; Miller v. Gable, 30 Ill. App. 578, and other cases in which the same rule was applied. Monroe v.

Chaldeck, 78 Ill. 429, cited as an authority that the plea of set-off contained an admission of partnership that was conclusive upon the parties, was an action of covenant upon a lease, to recover $150 which had been paid in advance for the rent of the premises, and to recover damages for failure of the lessor to put the lessee in possession of the premises, upon which three pleas were filed, viz., non est factum, payment, and tender of $150; the Court deciding that, on the authority of Chitty on Contracts, a tender admits the contract, and the facts specially stated in the declaration, if the plea be applied to that part of the declaration.

This, of course, does not sustain the contention here made. But it is insisted that these pleas are inconsistent — that the purpose in the mind of the pleader in one plea was to defeat the plaintiff below by showing that he was not liable as a partner in the alleged co-partnership, and in the other plea that, should he be found to be liable as a partner, there was a sufficient set-off — the argument being that he cannot consistently take both positions. But why not?

Why may he not, in perfect good faith (the question as to whether the attempt to incorporate the co-partnership was effectual or not being in doubt) insist that in either case he is not liable? Why may he not invoke the judgment of the Court as to whether the company was a co-partnership or a corporation (there might be honest doubt on that subject) without surrendering a genuine bona fide defense. The pleas are not in fact inconsistent in the sense that they are repugnant to each other. But assuming that they are inconsistent, will the proof in favor of both be rejected? Does he lose his defense on both grounds?

And if not, who is to choose upon which defense the trial shall proceed? Shall that choice be with his adversary ? The most, it seems to us, that the Court below could have required would have been that plaintiff in error should elect upon which one of the two “inconsistent” pleas he would stand (that he should be compelled to elect, we are not deciding), and his motion for leave to withdraw the plea of set-off was, in effect, such an election.

But what, in effect, was done by the Court below was to give, not to the party proffering the pleas the right of election, but to the party against whom the pleas were proffered, thus enabling the adversary to choose upon what issue the trial should be had. The judgment of the Circuit Court is reversed and the cause remanded, with instructions to grant a new trial and proceed further in accordance with this opinion.