This was an appeal from a judgment recovered in the circuit court for Multnomah county, in which the respondent, Kafka, was plaintiff, and the appellant, Simon, was defendant. Plaintiff alleged in the complaint, that during the years 1867 and 1868 he sold to the defendant goods, wares and merchandise, amounting in the aggregate to $432.40 in United States currency, and during the same time advanced to the defendant $107.80 currency, no part of which had been paid. The defendant in his answer denied the allegations in the complaint and averred, that during said time, he sold to the plaintiff goods, wares and merchandise to the value of $565;-that plaintiff had paid to apply thereon in money and produce the equivalent of $343 currency; also, that the defendant, before the commencement of this action, commenced an action against the plaintiff for the unpaid balance of his said account, in a justice’s court in Multnomah county, and that in his complaint therein he gave credit for the said sum of $343 currency, the amount so paid, and in the action in said justice’s court, recovered judgment for the sum of $166.50, besides costs. That said Kafka appealed to the circuit court of Multnomah county. That when the appeal was perfected, Kafka obtained leave from the court to withdraw his answer, whereupon Simon obtained judgment for the sum of $222 and costs. That the merchandise, produce and money for which this action was brought by Kafka was the same which was credited him by Simon in the justice’s court, and on appeal to the circuit court, where the answer was withdrawn, and the defendant Simon claims that the same was a bar.

*561Plaintiff, Kafka, in liis reply, admitted the recovery of the judgment in the justice’s and circuit courts, and claimed that he had paid Simon more than $343. That he had sold and advanced to him in goods and cash to the amount of $542.20 currency. There was no denial in the reply of the allegation in the answer that the credit given by Simon in his complaint for merchandise, produce and money, was the same for which this action was brought, and it appeared that the only issue between the parties, in the justice’s court, upon that point, was whether Kafka was entitled to bo credited for more than $343.

Simon claimed that he should be allowed in this action the amount he had credited Kafka in the former action in the justice’s court, and on appeal to the circuit court. Several questions were raised upon the trial by Simon’s counsel, which are presented by the bill of exceptions. The court has not deemed it necessary to examine any more than the following. After the jury retired they came in for further instructions, and the foreman asked the court as follows:

“If I am satisfied that the plaintiff has been allowed by Simon in the first suit for the produce, should the jury give the plaintiff a verdict for the same produce?”

The judge, in reply, charged the jury, that they had nothing to do with what Simon undertook to set off in the former case; that the complaint in that ease did not allege that Kafka had consented to set off his claim, and that if there was no oilier defense than the former judgment, all they had to do, was to ascertain whether the plaintiff had sold and delivered to defendant produce, and if any, how much and what was its value, and to render a verdict accordingly. This charge wras duly excepted to by Simon’s counsel.

The jury returned a verdict for $155.98 in favor of Kafka.

We think this charge was erroneous; that under the circumstances of this case, Kafka would have no right to recover upon a claim which had already been allowed him and of which he had received the full benefit. The circuit court *562seems to have gone npon the theory, that unless the merchandise and produce for which this action was brought had been received by Simon under an agreement, that it should be received, in payment of the merchandise, etc., he had let Kafka have, it would be no defense, although Simon had actually allowed Kafka therefor in the former action. This is evident, from the fact that the court was requested to charge, that if the jury was satisfied, that any portion of Kafka’s account, had been allowed by Simon as a credit in the complaint in the former action, that Kafka could not recover in this action for the same items, and refused to do so. It is true, no doubt, that when there are mutual independent claims between two parties, that neither can sue the other and compel him to bring in his claims as a set-off or counter claim. But by examining the pleadings in the case in the justice’s court, which were made an exhibit in Simon’s answer herein, it will be seen that Kafka clearly adinits that the produce, etc., was received by Simon in payment of his claim against Kafka.

The language of Kafka’s answer in the former case in the justice’s court is, that he denies that he has paid, on account of the merchandise, etc., no more than $343, in currency; but says he has paid plaintiff Simon, in merchandise, produce and cash $500, currency. This presents the following state of facts: Simon sues Kafka for a balance upon merchandise sold, admitting in his complaint that Kafka has paid him, to apply thereon in a certain manner, $343. Kafka says, by his sworn answer, that he has not only paid him that amount, but more — to wit, $500. The issue is tried; Simon gets a judgment for the balance, of his account, after allowing the $343. Kafka appeals, and after the case reaches the appellate court, obtains leave to withdraw his answer, and Simon takes judgment for such balance. After all this has occurred, Kafka claims the right to recover, in another action against Simon, the same amount allowed him in the former, and not allow Simon to claim the same as any defense. It is the opinion of this court, that Kafka, under the circumstances mentioned, is precluded from saying that the *563merchandise, produce and money for which this action is brought, was not received by Simon to apply a,s payment upon the merchandise, etc., that he sold to Kafka.

For these reasons, the judgment of the circuit court is reversed and the cause remanded to the court below for a new trial.