#### William R. Smith v. George Adams & Burke Co.

1. Recoupment—Evidence of, Admissible Under the General Issue.— Evidence of matters in recoupment is admissible under' the general issue.

Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1898.

Affirmed.

Opinion filed December 23, 1898.

Asa Quincy Eeynolds, attorney for appellant.

Flower, Smith & Musgrave, attorneys for appellee.

Mr. Justice Horton

delivered the opinion of the court.

This suit was brought by appellant to recover the sum of $385.81, claimed to be the balance due to him from appellee. The appellee claims that it paid out for appellant and at his request the sum of $212.35, and admits that it owes to him the balance, viz., $173.46. The verdict and judgment in the court below are for the last named sum.

It is contended on the part of appellant that said sum of $212.35 could only be allowed to appellee by way of set-off. That position is not tenable upon the record in this case. The counter-claim of appellee was clearly recoupment, and there was no error in a Imitting testimony as to the same under the general issue in this case.

It appears that after this suit was commenced appellee brought suit against appellant and one Myers to recover from them said sum of $212.35. On behalf of appellant it is contended, in effect, that such subsequent suit is a bar to this suit. That position is also untenable. Appellant testified that the suit against Smith and Myers had been commenced by appellee. Even if that was permissible, that is all the use appellant was entitled to make of that second suit upon the trial of this suit.

It was not error by the court below to refuse to hear *251arguments upon the motion for a new trial. Under the circumstances of this case it would appear to be eminently proper. That court did not refuse to entertain the motion, but overruled it and entered judgment on the verdict.

Perceiving no error, the judgment of the Circuit Court is affirmed.