Finance Acceptance Co. v. Breaux

• Decision Date: 26 September 1966
• Docket Number: No. 21122,21122
• Citation: 419 P.2d 955
• Parties: , 54 Lab.Cas. P 51,556 FINANCE ACCEPTANCE COMPANY, formerly Finance Corporation, Plaintiff in Error, v. Joseph BREAUX and Lois Breaux, Defendants in Error.
• Court: Colorado Supreme Court

Page 955

419 P.2d 955

160 Colo. 510, 54 Lab.Cas. P 51,556

FINANCE ACCEPTANCE COMPANY, formerly Finance Corporation Plaintiff in Error, v. Joseph BREAUX and Lois Breaux, Defendants in Error.

No. 21122.

Supreme Court of Colorado, In Department.

Sept. 26, 1966.

As Modified and Adhered to on Denial of Rehearings Nov. 21, 1966.

Richard M. Huckeby, Denver, for plaintiff in error.

Harry E. Carleno, Englewood, for defendants in error.

McWILLIAMS, Justice.

In a trial to the court upon an agreed statement of facts the Finance Acceptance Company, hereinafter referred to as plaintiff, was awarded judgment against Joseph and Lois Breaux, hereinafter referred to either by name or as the defendants, in the amount of $9,166.99. At the same time the one defendant, Joseph Breaux, received judgment on his counterclaim against the plaintiff in the amount of $869.58. By writ of error plaintiff now seeks reversal of these judgments, contending, in essence that Joseph Breaux's judgment on his counterclaim should have been 'set-off' against its judgment against the two defendants.

In other words, as we understand it, plaintiff urges that Joseph Breaux's judgment on his counterclaim should have been 'set-off' in the sense that it should have been subtracted from plaintiff's judgment against the Breauxes. All of which would mean that there would then only be one judgment entered in this entire controversy, namely, a judgment for plaintiff against the defendants for $8,297.41, this sum representing the defendants' total indebtedness to the plaintiff, i.e., $9,166.99 less plaintiff's indebtedness to Joseph Breaux in the amount of $869.58.

The background of this controversy is a tangled one and we shall indulge in no more detail than is absolutely necessary. However, we must recount at least certain of the significant events giving rise to the dispute, in order that our decision shall have meaning.

Joseph Breaux had for many years been an employe of the plaintiff, which employment came to a rather abrupt halt during the latter part of November 1962. As of that particular time the defendants were indebted to the plaintiff in the amount of nearly $10,000, which indebtedness was evidenced by two promissory notes. When this employment was terminated, plaintiff admittedly owed Joseph Breaux the sum of $617.91 as wages due him for certain overtime work. As of this same time, the plaintiff also owed Joseph Breaux an additional sum of $437.04, which sum represented Joseph Breaux's interest in a retirement plan operated by the plaintiff for its employes. This retirement plan was voluntary in nature in that the employe was not compelled to join it, but could do so at his own election. Joseph Breaux voluntarily elected to become a member of this retirement plan. This plan provided for the monthly withholding of a certain percentage of an employe's wages, with the proviso that if an employe terminated his employment before becoming eligible for retirement benefits, he was then only entitled to the return of the monies thus contributed by him, plus interest.

The matter as to whether any, or all, of Joseph Breaux's claims against the plaintiff should be set-off against plaintiff's claim against the two defendants was really the only disputed issue before the trial court, all the evidentiary facts having been stipulated and agreed to by the parties.

The trial court found that the defendants were in default in their payments to the plaintiff on the two promissory notes and that the total amount then due and owing the plaintiff on these unpaid obligations was $9,652.36. The trial court did 'set-off' against this amount the sum of $485.37. Of this set-off, $300 represented money realized by plaintiff in the repossession of defendant's automobile. The remaining portion of the set-off, namely, $185.37, represented 30% Of Joseph Breaux's claim for unpaid wages, a matter which will now be gone into a bit more fully.

As already noted, Breaux's total claim for wages due him was $619.71. This amount was stipulated to by the plaintiff. However, Breaux further claimed that 70% Of his wage claim was exempt from levy under C.R.S.1963, 77--2--4, and that, being exempt from levy, it was by the same token also 'exempt' from being in any manner set-off against his indebtedness to plaintiff. The trial court agreed with this position of Breaux, and decreed that only 30% Of the total claim for unpaid wages could be set-off against the defendants' indebtedness to plaintiff on the aforementioned promissory notes.

Allowing a set-off, then, in the total amount of $485.37, $300 in connection with the automobile repossession, and $185.37 representing 30% Of Breaux's claim for unpaid wages, the trial court entered judgment for plaintiff against the defendants in the sum of $9,166.99, i.e., $9,652.36 less $485.37.

As regards Joseph Breaux's counterclaim, the trial court held that 70% Of his claim ($432.54) for unpaid wages could not in any manner be set-off and that accordingly he was entitled to a judgment against the plaintiff in the sum of $432.54. Additionally, the trial court also determined that Joseph Breaux was entitled to the return of all of his contributions into the retirement fund, which totaled $437.04. As regards this particular item, the trial court specifically found 'that by contract of the parties this money is not subject to attachment and may not be withheld by plaintiff as a set-off.' Accordingly, the trial court entered judgment in favor of Joseph Breaux on his counterclaim and against the plaintiff in a total amount of $869.58, i.e., $432.54 (70% Of his wage claim) plus $437.04 (his entire interest in the retirement fund). In other words, the trial court by its judgment clearly held that the amount of Joseph Breaux's judgment against the plaintiff on his counterclaim could not in any manner be set off against plaintiff's judgment on its claim against the two defendants.

If both plaintiff and the Breauxes were solvent to the end that each could and would satisfy the judgment rendered against them, or it, the parties themselves would have no doubt effected their own set-off. But the real controversy was triggered by the fact that the defendants are insolvent and cannot...