Drennen v. Gilmore

• Decision Date: 20 December 1901
• Citation: 132 Ala. 246,31 So. 90
• Parties: DRENNEN v. GILMORE ET AL.
• Court: Alabama Supreme Court

31 So. 90

132 Ala. 246

DRENNEN v. GILMORE ET AL.

Supreme Court of Alabama

December 20, 1901

Appeal from city court of Jefferson; Chas. A. Senn, Judge.

Action by Gilmore Bros. against W. M. Drennen. From a judgment for plaintiffs, defendant appeals. Affirmed.

E. J Smyer, for appellant.

James E. Webb, for appellees.

HARALSON J.

It is neither pleaded nor shown, that the set-off attempted existed in defendant's favor, as a claim owned by him individually, at the time of the institution of this suit. For aught appearing, he could not at that time have successfully maintained an action on it in his own name and for his own benefit. "A set-off, to be available, must be owned by defendant in absolute right, at the time suit is brought. It is not enough that, together with another partner, the defendant owns the claim. It must be such demand as that he, in his own name, or in the names of defendants sued, without bringing in the name of a stranger to the suit may maintain an action of debt or indebitatus assumpsit upon it, against the party, or all the parties suing, as the case may be. Less than that is not mutuality. Ownership at the time of suit brought is of the very essence of the right." Jones v. Blair, 57 Ala. 457; Wood v. Steele, 65 Ala. 436; Manning v. Maroney, 87 Ala. 563, 6 So. 343, 13 Am. St. Rep. 67.

In order to sustain a set-off under the statute, the debts must be mutual, and the demands must be subsisting causes of action, such as will give to the plaintiff and defendant a simultaneous cause of action, the one against the other, at the time the suit is brought. Packet Co. v McPeters, 124 Ala. 455, 27 So. 518; Lawton v Ricketts, 104 Ala. 430, 16 So. 59; Wat. Set-off, § 25.

Section 40 of the Code, existing substantially, since 1818, and carried into the Code of 1852, provides for the several as well as joint liability of two or more persons associated together as partners, and that any one of the associates, or his legal representative, may be sued for the obligation of all. Clay, Dig. 323; Code 1852, § 2142.

Section 3728 provides, that "mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between the parties, at the commencement of the suit, may be set off one against the other by the defendant or his personal representative, whether the legal title be in the defendant or not," etc.

The debt of Drennen & Co. to plaintiffs, for the collection of the draft by them for $500 belonging to plaintiffs, and left by plaintiffs with them for collection, was, under the statute, the individual debt of the defendant, W. M. Drennen who was a member of that partnership, and for which he was personally liable, just as much so, as if his partnership had not existed, and he had personally collected said draft. When sued individually on this debt by plaintiffs,--as they were authorized by statute to proceed against him,--he attempted to plead a debt the plaintiffs owed his firm, without pleading or proving that he was the owner of the set-off at the time the suit was commenced. This he could not do. The debts were not mutual, for the reason that plaintiffs owned the debt sued on, and Drennen & Co. owned the set-off. A right of set-off, to diminish or defeat a recovery, did not exist at common law, but...