Source: United States Court of Appeals for the Ninth Circuit
Date: 1907-11-04
Jurisdiction: United States
Docket: No. 1,187
Citation: 157 F. 87
Opinion
DE HAVEN, District Judge. This is the second hearing of this case. On January 7, 1907, the judgment of the lower court was affirmed in an opinion which is reported in 150 Fed., 524, 80 C. C. A. 266. On March 11, 1907, a rehearing was ordered, “solely for the rehearing of the case upon the questions presented by the demurrer to that portion of the answer setting up a counterclaim against Simpson for $2,-654.15.” The answer is lacking in clearness and precision of statement; but up on further consideration we have reached the conclusion that as against a general demurrer it should be construed as alleging that Sol.
G. Simpson became indebted to Fish & Loomis in the sum of $2,654.15 for merchandise sold to, and freight and passengers carried for, him by that firm under the contract therein referred to, and that said sum has not been paid by Simpson. These facts, if proven, would, under the rule announced in our former opinion, entitle the defendant to set off the amount of such indebtedness against the note sued on. Judgment reversed, with direction to overrule the demurrer to the answer. Mandate forthwith.