Mortimer v. Trappan's Estate

delivered the opinion of the court.

The plaintiff sues for the amount of a promissory note and a balance due him for wages, as clerk, by the defendant’s testator, as shown by the note and account annexed to the petition. The defendant having answered by a general denial, offered in the progress of the trial to'show by written x . J evidence, that the plaintiff had received various sums of money to a greater amount than was admitted in his account. The evidence was rejected on the ground ’that payment or compensation ought to have been pleaded. A bill of exceptions was taken, from which it further appears that the defendant declined an offer to permit him to amend his answer, and add a plea of payment or compensation. We think the court did not err. In the case of Gleises vs. Faurie et al., we held that payment must be pleaded. 6 Louisiana Reports, 455.’ The plaintiff who had admitted credits in his *112account to the amount of four hundred and twelve dollars and eighty cents, without specifying particular sums or times of such payments, might not have it in his power to show instanter that the payments offered to be shown were, in fact, already credited: parties are to be protected against surprise. The case of Fram vs. Allen, relied on by the appellant, was somewhat different from this, and decided before the promulgation of the Code of Practice. 3 Martin, 381. 1 0

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.