Austin v. Feland

• Decision Date: 31 July 1843
• Citation: 8 Mo. 309
• Parties: AUSTIN v. FELAND, GRAVES AND GRAVES.
• Court: Missouri Supreme Court

8 Mo. 309

AUSTIN

v.FELAND, GRAVES AND GRAVES.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO THE RANDOLPH CIRCUIT COURT.

DAVIS, for Plaintiff. The plaintiff insists that the plea of set-off is bad, and that upon the demurrer the judgment should have been for him. The plea avers that one of the notes on Wear, the assignor, to plaintiff, of the note sued on, was to be paid in notes and accounts. 5 Mon. 83. The plea does not show that the demand offered to be off-set was due and owing to Wear before and at the trial of the assignment of this note to plaintiff. The Circuit Court ought to have given the instruction of plaintiff and it ought not to have given the instruction of defendants. 4 Mo. R. 233. Damages cannot be set-off under the act. 2 Johns. R. 150, Gordon v. Bourne. Must be due in the same right. See Chitty on Contracts, 328, 329; 11 Mass. R. 140, Walker v. Leighton et al.; 4 Rand. R. 359, Parton v. Neckerois.

SCOTT, J.

This was an action, commenced by petition in debt, on a note executed by the defendants, and made payable to William Wear, and by him assigned to the plaintiff, Austin. The defendants pleaded jointly nil debet; J. H. Graves and Robert Graves pleaded, by way of set-off, that William Wear, the assignor of the plaintiff, was, before and at the commencement of the suit, indebted to J. H. Graves, one of the defendants, by note, in the sum of seventy five dollars; and that the said William Wear was indebted to Robert Graves, another of the said defendants, in the sum of one hundred and seventy-seven dollars, to be paid in notes and accounts. To this plea the plaintiff demurred, and the court overruled the demurrer, and thereupon the parties went to trial, and the jury, to use their own language, found as in case of a non-suit. A motion for a new trial was made by the plaintiff and overruled, and he has brought his case here by writ of error.

It is contended by the plaintiff, that the defendants could not plead separately, that this being an action ex contractu, all the defendants should join in a plea in bar. There are respectable authorities for the position that defendants pleading to the merits, in an action ex contractu, should join. 6 Mass. R. 444. But others are against it. Moravia v. Hunter and Glass, 2 Maule and Selwyn, and Minor et al. v. The Mechanics Bank of Alexandria, 1 Peters' R. Comyns' Digest, title Pleader, 35. However this question might be at common law, it would seem that the act of Assembly of February 13, 1839, permitting plaintiffs at will to join as many defendants in actions ex contractu as they please, and to recover against one or more of them, had changed the law, had it been otherwise. In all actions of tort it was never questioned but the plaintiff could join several, and recover against one or more of them; hence it was always held that, in such actions, defendants could sever their pleas. Ubi eadem ratio, ibi eadem lex.

It was next objected, that the demurrer to the plea of set-off should have been sustained, because it was not averred in the plea; that the debt mentioned in it was due at the time of the assignment of the note. We do not see the ground on which this objection is based. There is no doubt of the general principle that a set-off should be due and owing to the party by whom it is plead at the commencement of the action. Chitty's Pl. 604. Our statute prescribes, that the nature of the defense of the obligor, or maker, shall not be changed by the assignment, but he may make the same defense against the bond or note in the hands of the assignee that he might have made against the assignor, and that the obligor, or maker, shall be allowed every just set-off and discount against the assignor before the assignment. This was dbitum in presenti solventum in futuro. Whether it could be used as a set-off would depend on the plaintiff; if he brought his action against the maker or his assignee before it was due, it is clear it could not have been used as a set-off; but delaying his action until it was due, the defendant's right to employ it as a set-off was unquestionable.^(a)

Another point in the cause is, that one of the debts pleaded as a set-off was payable in notes or accounts, and therefore could not be used as a set-off. It is a general rule that where indebitatus assumpsit will lie on a simple contract, the debt due by such contract may be plead as a set-off. A set-off is never admitted in actions ex contractu, if the claim be for uncertain, unliquidated damages. Chitty, 604. In the case of Colson v. Welsh, Esp. N. P. Lord Kenyon held the statute of set-off applied only to mutual debts; that when the plaintiff's demand was on a special agreement a set-off was never allowed, although it might be when the plaintiff had...