15 N.E. 513 (Ind. 1888), 13,076, Sefton v. Hargett

Docket Nº:13,076
Citation:15 N.E. 513, 113 Ind. 592
Opinion Judge:Mitchell, C. J.
Party Name:Sefton v. Hargett et al
Attorney:J. K. Ewing and C. Ewing, Jr., for appellant. J. S. Scobey, for appellees.
Case Date:February 14, 1888
Court:Supreme Court of Indiana
 
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15 N.E. 513 (Ind. 1888)

113 Ind. 592

Sefton

v.

Hargett et al

No. 13,076

Supreme Court of Indiana

February 14, 1888

Petition Overruled March 3, 1888.

From the Decatur Circuit Court.

The judgment is affirmed, with costs.

J. K. Ewing and C. Ewing, Jr., for appellant.

J. S. Scobey, for appellees.

OPINION

[113 Ind. 593] Mitchell, C. J.

Action by Isaac Sefton, assignee of a promissory note, dated August 20th, 1884, calling for $ 125, payable to Robert J. Tate, due twelve months from date, executed by James R. Hargett, as principal, and by Lewis C. Hargett and James W. Anderson as sureties.

Anderson presented in a separate answer and by way of set-off substantially the following facts, viz.: That the note in suit was given in consideration of the price of a horse sold by Tate to James R. Hargett, upon which note the defendants Anderson and Lewis C. Hargett became bound as sureties for James R. Hargett. Afterwards Anderson purchased the horse from James R. Hargett, and as a consideration

Page 514

agreed to assume and pay the note to Tate, thereby becoming primarily liable for the payment of the debt. It is averred that Anderson had become surety for Tate to one Hendricks on a note upon which, owing to the default of Tate, he, Anderson, had been compelled to pay $ 167.53 on the 6th day of June, 1885, which sum remained due and owing to him from Tate, who, it is alleged, is notoriously insolvent.

It is further alleged in the answer that Tate owned the note in suit at the time Anderson paid the debt for which he was bound as Tate's surety, and that he had no notice of the assignment of the note in suit until long after he paid Tate's debt. Prayer that the defendant Anderson be permitted to set off the $ 167.53 paid by him for Tate against the amount due on the note.

Upon demurrer to the answer the court was of opinion that it presented a proper claim for a set-off. The only question involved in this appeal relates to the propriety of this ruling.

It is a well established general rule, both at law and in equity, that only mutual demands, existing in the same right, are proper matters of set-off. The application of this rule prohibits the allowance as a set-off of an individual debt due one of several defendants who are jointly liable to the plaintiff, [113 Ind. 594] either on behalf of all the...

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