Canfield v. Arnett

• Decision Date: 14 April 1902
• Citation: 17 Colo.App. 426,68 P. 784
• Parties: CANFIELD et al. v. ARNETT.
• Court: Colorado Court of Appeals

68 P. 784

17 Colo.App. 426

CANFIELD et al. v. ARNETT.

Court of Appeals of Colorado

April 14, 1902

Appeal from Boulder county court.

Action by Mary G. Arnett against Frank Canfield and another. From a judgment for plaintiff, defendants appeal. Reversed.

Patterson Richardson & Hawkins and Guy D. Duncan, for appellants.

S.T Horn, for appellee.

GUNTER J.

Plaintiff sued upon this note: "$355 25/100. Boulder, Colo., Aug 4th, 1898. One day after date, we, or either, promise to pay to the order of Mary G. Arnett three hundred fifty-five and 25/100 dollars, at Boulder, Colo Value received. Int. 10 per cent. per annum. Frank Canfield. Nettie Canfield." As a counterclaim, Frank Canfield set up an indebtedness upon contract, due him from plaintiff. By demurrer the objection was made and sustained that plaintiff's cause of action was joint, and the cause of action stated in the counterclaim was several; that such several cause of action did not constitute a counterclaim against the cause of action of plaintiff. The ruling is assigned as error. The sufficiency of the counterclaim is determined by section 57, Mills' Ann.Code, reading thus: "The counter-claim *** shall be one existing in favor of the defendant *** and against the plaintiff *** between whom a several judgment might be had in the action,"--being the same as section 58, Code 1877, which was taken from the Code of California. See section 438, Code Civ.Proc.Cal. Mr. Pomeroy, interpreting this section of the California Code, said: "When defendants in an action are jointly and severally liable, although sued jointly, a counterclaim consisting of a demand in favor of one or some of them, may, if otherwise without objection, be interposed." Pom.Code Rem. (3d Ed.) § 761. This citation approved Roberts v. Donovan, 70 Cal. 108, 114, 115, 9 P. 180, 11 P. 599. "Defendants jointly and severally liable to satisfy plaintiff's demand may set off a demand due from the plaintiff to one of the defendants alone." 2 Estee, Pl. & Prac. (4th Ed.) § 3368. Section 57 of our Code is the same as section 150 of the New York Code, construed in Parsons v. Nash, 8 How.Prac. 454. The following from the syllabus is expressive of the holding: "Therefore, held, in an action upon a joint and several promissory note against several defendants, one of them might set off a judgment recovered upon contract in his favor against the plaintiff." See, also, Plyer v. Parker, 10 S.C. 464; 22 Am. & Eng.Enc.Law, p. 404. This question has not been ruled otherwise in this state. Thatcher v. Rockwell, 4 Colo. 375, held that a copartnership could not offset in an action against it a claim of one of its members against the plaintiff. In Ingols v. Plimpton, 10 Colo. 538, 16 P. 155, a copartnership sued an individual defendant. The defendant sought to set up as a counterclaim a several debt owing him by one of the partners. Denied. In Thalheimer v. Crow, 13 Colo. 397, 22 P. 779, plaintiff sued upon appeal bond. The principal thereon was not a...