Collins v. Waddle
| Decision Date | 31 October 1836 |
| Citation | 4 Mo. 452 |
| Parties | COLLINS v. WADDLE. |
| Court | Missouri Supreme Court |
GAMBLE and ALLEN, for Plaintiff in Error. In support of the error assigned in this case, the plaintiff relies on Chitty on Bills, p. 126-7, 8, 9, 30, and notes.
SPALDING, for Defendant in Error. The defendant in error contends that the set-off is not allowable: 1. Old Rev.Code, p.143, § 1, shows that there is no set-off allowable, when the note is payable “without defalcation,” so that this plea is prohibited by the statute. 2. But if this were not so, the set-off could not be allowed, because the defendant, Collins, has agreed that it should not be claimed. The words “without defalcation” mean that he would not claim a set-off; and it is against his own formal stipulation, in making the contract, to set it up now. He should be held as estopped. None of the cases decided under the law merchant, are cases of notes containing this stipulation against set-off. 3. These words are at least to be considered as Collins' formal admission and statement, that he had no set-off against the note at this date; and to let him now go back to set up one, is not only against bonos mores, but against the knowledge of the law; which when admissions are made for certain purposes, will hold the person making them, to the fact admitted in the absence of fraud.
a1
Waddle brought an action by petition and summons, in the Circuit Court of St. Louis county, against Collins on an assigned note. The petition states, that on 21st day of October, 1833, the defendant made the note, whereby he promised on the 1st May, 1834, to pay to John Darniel or order, five hundred and fifty dollars, negotiable and payable in Branch Bank United States at St. Louis, without defalcation. That on the 9th May, 1835, Darniel assigned the note to William Myers. That on 26th May, 1836, Myers assigned the same to Waddle. Collins, among other things, pleaded that after making the said note, and while it was the property of said Darniel, and before he had assigned the same, the said Darniel was and still is indebted to the plaintiff, in the sum of one thousand five hundred dollars, for so much money by the defendant, before that time lent to him, and paid, laid out, &c. and for two thousand dollars had and received, &c., which he is ready to verify. Wherefore he prays judgment. The plaintiff demurred to this plea, and had judgment on the demurrer. This is the only error complained of.
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Hunleth v. Leahy
...connected with the note itself, and not such as grow out of independent and distinct transactions between the original parties. Collins v. Waddle, 4 Mo. 452; Loewen v. Forsee, 137 Mo. 29, 38 S.W. In the fifth paragraph of their brief counsel for Messrs. Leahy and Padersky make the point tha......
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Cutler v. Cook
...When these provisions were first construed they were held by Judges McGirk and Scott to apply only to non-negotiable paper. Collins v. Waddle, 4 Mo. 452; Maupin v. Smith, 7 Mo. 402. These decisions were rendered in 1836 and 1842. In 1847, Judge Wash held in Baker v. Brown, 10 Mo. 396, that ......
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Hunleth v. Leahy
...connected with the note itself, and not such as grow out of independent and distinct transactions between the original parties. Collins v. Waddle, 4 Mo. 452; Loewen v. Forsee, 137 Mo. 29, 38 S. W. 712. In the fifth paragraph of their brief, counsel for Messrs. Leahy and Padersky make the po......