Cohn v. Carter

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, C. J.
• Citation: Cohn v. Carter, 92 Miss. 627, 46 So. 60 (Miss. 1908)
• Decision Date: 06 April 1908
• Docket Number: 13,246
• Parties: MOSES COHN v. WILLIAM M. CARTER ET AL

46 So. 60

92 Miss. 627

MOSES COHN v. WILLIAM M. CARTER ET AL

No. 13,246

Supreme Court of Mississippi

April 6, 1908

FROM the chancery court of Sunflower county, HON. PERCY BELL Chancellor.

Cohn appellant, was complainant in the court below; Carter and another, appellees, were defendants there. From a decree granting complainant only a part of the relief for which he prayed he appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Reversed.

Baker &amp Moody, for appellant.

The only question presented for the consideration of the court is as to whether or not the $ 250 paid by Cohn, the appellant, to Anderson on December 16, 1903, should be allowed as a credit on the $ 700 note set up in the cross-bill, and whether the balance due on this note after deducting this $ 250 only should be allowed as a set off against the amount due the complainant.

The appellant is unquestionably entitled to recover and subject the land in controversy to the payment of the amount due on the $ 1,200 note sued on, with interest according to its tenor, and one-half of the amount paid for lumber for building a house on the land in controversy, and the taxes for the years 1904, 1905 and 1906, which amounts aggregate $ 1,787.20. The appellees of course are entitled to a credit against this amount of the $ 700 note set up in the cross-bill, but our contention is that only the balance due on this note, after deducting the $ 250 paid by Cohn to Anderson on December 16, 1903, should be allowed as a set-off.

This is a suit by the complainant to collect a debt about which there is no dispute. The defendants answered setting up a claim against the complainant, which they asked to be set off against the amount demanded. The complainant replied to this and set up another debt due by defendant's intestate, which he asked to be set off against the defendant's set-off, and only the balance be allowed as a set-off against the debt sued on. The estate of Anderson is insolvent, and had been declared insolvent by the chancery court of Sunflower county. While there might be some dispute at law as to the right of the plaintiff to set off a demand against a set-off filed by the defendants, there can, we take it, be no doubt of the complainant's right to use such a set-off in chancery where there is a supervening equity, such for instance as the insolvency of the defendant's intestate. 25 Am. & Eng. Enc. Law (2d ed.), 542, 543, 544. In the same book, at page 500 it is said that "The right of set-off was designed to protect a defendant, consequently there cannot, under the generally prevailing statutes, be a set-off against a set-off." While this may be true in some of the states, still we contend that if this was a suit at law and not in equity Cohn as the plaintiff would be entitled to set off the $ 250 against the $ 700 set up as a set-off by the defendants. We make this contention by virtue of Code 1906, § 747. The court below was evidently of the opinion that the words "mutual dealings" used in the section quoted meant "mutual accounts," and that the facts in this case did not show mutual accounts between Cohn and Anderson; in other words, that the evidence showed entirely distinct transactions, and that the statute only had reference to the balance due on mutual accounts.

Johnson & Neill, for appellees.

The only question in this case is whether there was error committed by the chancellor in disallowing complainant's claim for $ 250. The account for $ 250 against this insolvent estate was never probated. Appellant contends that the probation of the claim was unnecessary because of Code 1906, § 747 (Code 1892, § 689). We submit that the statute is not applicable to the facts of this case, The account for $ 250 was a simple isolated transaction, it did not arise out of "mutual dealings." In 1903, according to appellant's contention, the intestate borrowed $ 250 from him. Afterwards in 1906 the appellant executed a note to the intestate for $ 700. There was no mutual current account between the two. They were two separate transactions taking place nearly three years apart. Most assuredly this account of $ 250 should have been probated against the estate to give it standing in this proceeding.

The $ 250 borrowed by Anderson in 1903 was not for use in the improvement of the land for the purchase money of which this suit was brought. This transaction was entirely disconnected from the dealings of these parties in reference to this land and is not a lien upon it.

OPINION

WHITFIELD, C. J.

On November 13, 1903, Cohn by deed conveyed to A. E. Anderson Jr., an undivided one-half interest in a certain tract of land for the consideration of...