¶1In this case, the defendant alleges that he has delivered certain articles to Hardy, in payment of the note. It appears that the same articles are specified in the set-off against the plaintiff’s claim. The plaintiff contends that the articles, having been thus specified, the defendants are not at liberty to prove that they were delivered in payment of the note.
¶2The plaintiff’s position could be maintained only on the ground that the specification of the articles is an estoppel in pais upon the defendant, but none of the requisites of such an estoppel exist. The specification is not an admission that the articles were not delivered in payment, nor has the plaintiff been induced to alter his position by it. The defendants’ course amounts to nothing more than this. They file the articles in set-off. They may, then, show that they were delivered in payment of the note. If they fail to prove this, they may rely upon the articles as furnishing evidence of a counter claim against the plaintiff. Their object will be attained, if they succeed in maintaining either of these positions. If they prove one state of facts, it will be unnecessary for them to rely upon the other. If the positions are so inconsistent with each other that the defendants cannot, in either way, prove that they are entitled to have the value of the articles allowed to them, then the whole *559course of our practice is wrong, for hardly a day passes without instances of evidence offered and received upon a similar principle.
¶3The other position taken by the plaintiff is equally untenable. The articles appear to have been charged upon the books of the defendants in the usual form. The plaintiff contends that the books furnish conclusive evidence that the articles were not sold in payment of the note. Now the books furnish evidence of the sale and delivery of the articles to the plaintiff, when fortified by the supplementary oaths of the defendants. The evidence derived from the books is not contradicted by proof that the articles were sold and delivered in payment of a particular debt. This last circumstance is distinct from and independent of the books. It would be a singular state of the law in which the defendants, after having proved the sale, were estopped from proving the purpose for which the sale was made, and upon what ground the books are conclusive evidence that the articles were not sold in payment of the note it is difficult to perceive.
¶4From the amount due on the note, there should be deducted the payments made upon it, amounting to the sum of $25,04, and for the balance there should be
¶5Judgment on the report.