Dunn v. West, &C.
| Decision Date | 24 April 1845 |
| Court | Kentucky Court of Appeals |
| Parties | Dunn <I>vs</I> West and Hackley. |
IN this action brought by Dunn against West and Hackley, on their joint and several bond for $680, a separate claim of West against Dunn, amounting to $437, was, by the intruction of the Court, allowed to be set off, and was, by the verdict and judgment, credited on the plaintiff's demand. It is contended here as it was in the Circuit Court, that there could be no set off of these demands: 1st. Because the demand of the plaintiff was joint, and the demand against him separate; and 2d. Because the claim of West is founded on the verbal promise of Dunn to pay the debt, or "to answer for the debt, default, or miscarriage of another," which not being in writing as required by the statute of frauds, cannot be enforced by way of set off, any more than it could be by action.
1st. Our statute does not, like that of England, use the phrase "mutual debts between the plaintiff and defendant," in describing the demands that may be set off against each other in an action, but says, "it shall be lawful for the defendant on the trial, if the plaintiff be indebted to him, to plead the same," &c. (Stat. Law, 1448.) We might not, therefore, feel bound to give precisely the same effect to our statute that had been given to the English statutes, before the enactment of ours; and although we are not disposed to question the propriety under our statute, of the general rule which had been deduced from the English statute, that the debts to be set off must be in the same right, and that a joint debt cannot be set off against a separate demand, nor a separate debt against a joint one, we are at liberty, and indeed bound so to expound the rule itself as not to impair the beneficial operation of the statute. The statute intended, in the first place, to confer a privilege on defendants, by enabling them to use defensively such demands as at their election might be justly applicable to the satisfaction of the plaintiff's claim, and which could obviously be so applied, without involving any possible injury to other parties. It also intended to prevent the necessity of cross actions, where there were demands on each side of the suit, which at the mere will of the parties to either demand, might be set off against each other without affecting the interests of the others not under their control. And it was intended to induce the voluntary settlement of such mutual demands, and thus to discourage unnecessary litigation, by giving to the party sued the right to coerce as a defendant, a discount which his debtor might and ought, upon application, to have allowed before suit.
Now the debt sued for here is due to the plaintiff separately, and the debt offered to be set off against it is due from him separately. So far as the plaintiff is concerned as a party to each demand, each is separate; that which is offered as a set off is entirely within the control of West, or by his consent, of West and Hackley, and no other person but the plaintiff and West, or the plaintiff and West and Hackley, have any interest in either demand, or in the question whether they shall be set off or not, and West and Hackley concur in offering to set off West's demand upon the plaintiff against the plaintiff's demand upon them. Suppose the demand of West against the plaintiff to have been undisputed, and that West and Hackley, or even West alone, had made this offer before the suit was commenced, upon what plausible pretext could Dunn have refused to make the set off? Either of them would have had the right to make payment in discharge of both. The just demand of either against him, would be a fair and proper equivalent for so much of his demand, whether joint or joint and several, against them. He could not be subjected to injury by making the discount; and no other person would be affected by it. What further mutuality of debts or identity of right in which they are held is required? Did the statute intend that there must be a perfect identity of the parties to the suit snd the parties to the debts to be set off, or does it require only such identity as will show that the demands are in substance mutual, that they are in substance, just equivalents so far as they cover the same amount, so that either may be applied as a credit to the other without injury to any.
If we stick to the letter of the statute, there can be no set off but between a single plaintiff and a single defendant, and the debt allowed to be set off must be from the plaintiff in the suit to the defendant. But it has been decided not only that a plaintiff may reply to a plea setting off a debt from him to the defendant, that the suit was brought for the benefit of a third person, but also that the defendant may plead by way of set off, that the suit was brought for the use of a third person, who is indebted to him; Carlisle vs Long, (1 A. K. Marshall, 487;) Ward vs Martin, (3 Monroe, 19;) Cummings' administrator vs Williams' heirs, (5 J. J. Marshall, 385;) and it is immaterial that the third person was not even named in the declaration as the beneficiary of the suit. If then there may be for the effectuation of the remedial and highly equitable purposes of the statute, such a departure from its letter as to introduce in the precise case described, of a single plaintiff and a single defendant, the equity of a stranger to the record, in order to defeat a legal set off, or to establish an equitable one, we certainly are not bound in extending the provisions of the statute, as must necessarily be done to cases in which there is a plurality of plaintiffs or defendants, to regard the right of set off as being restricted to the case of a complete and perfect identity of the parties to the suit and the parties to the set off. If such identity is not required in the simplest case, and the one expressed in the statute as an example, much less can it be required in those more complicated cases for which no express provision is made.
Upon the principle of the cases just referred to, it could not be doubted that in case of several plaintiffs sueing jointly, a plea averring that one of them was beneficially entitled to the whole demand, and offering to set off a debt from that one to the defendant, would be good, and it would seem equally clear that in an action against several, they might plead that one alone was the real debtor, and set off a debt due from the plaintiff or plaintiffs to that one. For if for the purpose of doing substantial justice, a...
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