Carpenter, J.
We think the construction put upon the defendant’s notice by the court below was the correct one. The statute provides that the defendant, in filing notice, shall state “ in general terms, without unnecessary prolixity, and in a manner intelligible to a person of ordinary understanding, the true ground and substance of the defense relied upon.” We think a person must be possessed of more than “ ordinary understanding ” if he can discover from this notice that it was the intention of the defendant to rely upon an absolute agreement of forbearance till November 1st, 1866, as a bar to the action. The whole structure of the notice indicates an unmistakable intention to rely upon a set-off as a defense. The prayer of the notice is, that the damages, arising from the breach of said contract, may be set off against any balance remaining due on said note, and that judgment for the balance be rendered for the defendant. This recognizes the plaintiff’s right to recover, provided the damages sustained by the defendant are less than the amount of the note. The notice, as drawn, indicates but a single ground of defense ; if it be construed as indicating two, or any other than a set-off, it would operate to mislead and deceive the plaintiff.
It is true the notice states an agreement to forbear collecting the note until the expiration of the lease, but the connection shows that the sole object of the forbearance was that the note should be and remain as security for any damages resulting from a breach of the contract. As it could not be known with certainty that the contract would not be violated until its expiration, there might be a necessity for the note to remain uncollected until that time. Otherwise it might fail to secure the performance of the contract, as the parties intended. Hence the provision referred to. But upon the facts as they appear no such forbearance was necessary. The contract, it seems, was broken and abandoned by the plaintiff and his associate on the 6th day of March, 1866. On the 2d day of August following the note was put in suit. At that time the defendant’s damages could be ascertained and applied, so that he was in a situation to have the full benefit of his agreement.
We can discover no advantage to either party in further delay and we cannot presume that the learned counsel for the defendant, in stating his grounds of defense, intended to rely upon one sO narrow and technical. The substance of the thing sought has been attained, and the defendant fully indemnified. Justice therefore has been done, and we see no reason for a new trial.
In this opinion the other judges concurred.