Baker v. Brown

• Citation: 10 Mo. 396
• Parties: BAKER v. BROWN, ASSIGNEE, &c.
• Decision Date: 31 January 1847
• Court: United States State Supreme Court of Missouri

10 Mo. 396

BAKER

v.BROWN, ASSIGNEE, &c.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO LEWIS CIRCUIT COURT.

GREEN & STRINGFELLOW, for Plaintiff. That the court erred in sustaining the demurrer--the plea of set-off being an equitable defense, and the party to the suit beneficially interested, being indebted to the defendant, the defense may be made. 13 Johns. 9; 8 Johns. 152; 3 Johns. Ca. 435, 263; 1 Johns. Ca. 51, 8 Pick. 342; 5 Pick. 167; 16 Mass. 473.

GLOVER & CAMPBELL, for Defendant. That the opinion of the Circuit Court was correct: 1st. Because the matter in said plea contained, was not well pleaded. 2nd. Because the matter attempted to be pleaded was not a bar to the plaintiff's action. Rev. Code 1845, p. 190, § 3; 4 Mo. R. 450; 7 Mo. R. 402.

MCBRIDE, J.

On the 21st November, 1842, John Baker executed his note for $58 52, to Asher B. Owsley, payable twelve months after date, for value received, without defalcation, bearing ten per cent. interest from date. On the back of said note is the indorsement, “for value received I assign the within note to Samuel Brown. Nov. 19, 1843. A. B. Owsley.” An action of petition in debt was instituted on the note, in the name of Brown, the assignee, for the use and benefit of Jona Franklin, against the obligor. At the May term of the Lewis Circuit Court, 1846, the defendant, Brown, appeared, and filed two pleas to the action--first nil debet--second, set-off. The plaintiff, passing by the first plea of the defendant, filed his demurrer to the second plea, which being sustained by the Circuit Court, he had his judgment, and the defendant, after having failed in obtaining redress in the Circuit Court, has brought his case here by writ of error. The only question which the plaintiff in error presents for our consideration, is the judgment of the Circuit Court on the demurrer to his plea of set-off.

The plea in substance, sets out that the plaintiff in the action is not the legal owner of the note, nor has he any interest therein. That the note was fraudulently assigned by Owsley, to prevent the defendant from obtaining an off-set for produce sold and delivered by him to Owsley, prior to the date of the assignment. The plea is lengthy, and the facts pleaded appear to be well pleaded, so far as we can discover. Do they then constitute a bar to the action?

To sustain the judgment of the Circuit Court, we are referred to our statute concerning Bonds and Notes, Rev. Code, 1845, p. 190. The second section authorizes the assignment of all bonds and notes for the payment of money or property, and gives the assignee the right of action in his own name for the recovery of so much thereof as shall appear to have been due at the time of the assignment. Under the provisions of this section no question could reasonably arise as to the defendant's right to set-off any indebtedness from the plaintiff to him, existing prior and at the date of the assignment. But, as if to avoid all possible misconception, the next section declares that “the obligor or maker shall be allowed every just set-off and discount against the assignee or assignor,...