Gerald v. Foster, 43129
| Decision Date | 09 November 1964 |
| Docket Number | No. 43129,43129 |
| Citation | 168 So.2d 518,251 Miss. 63 |
| Parties | Hugh GERALD, d/b/a Gerald's Auto Repair Works, v. Herman FOSTER. |
| Court | Mississippi Supreme Court |
Wells, Thomas & Wells, Walker L. Watters, Jackson, for appellant.
Courtney & Echols, Jackson, for appellee.
This case is before us on appeal by Hugh Gerald, doing business as Gerald's Auto Repair Works, defendant in the court below, from a judgment of the Circuit Court of the First Judicial District of Hinds County, affirming a judgment of the county court in favor of Herman Foster, plaintiff in the court below, in an action brought by the appellee against the appellant on a judgment rendered in favor of the appellee against the appellant in the State of Louisiana.
The record shows that on January 8, 1963, Herman Foster, as plaintiff, filed declaration in the county court of the First Judicial District of Hinds County against Hugh Erald d/b/a Gerald's Auto Repair Works, as defendant, in which he alleged that a judgment was rendered in favor of the plaintiff Herman Foster against the defendant Hugh Gerald, d/b/a Gerald's Auto Repair Works, in Cause No. 64525, Division 'C', in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, on December 19, 1958, in the amount of $735, together with legal interest thereon from the date of judicial demand until paid and all costs. A duly authenticated copy of the above mentioned judgment of the Louisiana Court was attached to the plaintiff's declaration and made a part thereof. The plaintiff further alleged that the defendant, at the time of the filing of the plaintiff's declaration, was a resident citizen of the State of Mississippi, and the Louisiana Court had no jurisdiction of the defendant; that no part of said judgment had been paid. The plaintiff therefore sued and demanded judgment of and from the defendant for the sum of $735, together with legal interest from December 19, 1958, until paid, and all costs accrued and to accrue in the cause.
The defendant Hugh Gerald, d/b/a Gerald's Auto Repair Works, filed an answer to the plaintiff's declaration in which he admitted the facts alleged in the plaintiff's declaration concerning the rendition of the judgment entered against him by the Louisiana Court. The defendant, however, as a part of his answer filed a setoff claim showing that, at the time of the filing of the suit by the plaintiff against the defendant, the plaintiff was indebted to the defendant for the sale of two automobiles and for work performed, as shown by account of setoff attached to the defendant's answer, which said indebtedness exceeded the demand of the plaintiff as set forth in the plaintiff's declaration. The defendant therefore prayed that the indebtedness to the plaintiff be credited with the amount of the setoff and that the plaintiff take nothing, and pay the costs of the suit.
The nature of the several items of the defendant's setoff was fully stated in the account of setoff, as follows: (1) That in 1956 the defendant, Hugh Gerald, d/b/a Gerald's Auto Repair Works, sold by oral contract a 1947 Mercury Coupe to the plaintiff, Herman Foster; that by the terms of the contract the plaintiff was to pay to the defendant the sum of $395 for the automobile; that the car was delivered to the appellant, but the plaintiff never paid any money for the car or returned it; that the plaintiff therefore owed to the defendant the sum of $395, plus interest on said indebtedness in the amount of $162.20. (2) That in February 1958 the defendant, Hugh Gerald, d/b/a Gerald's Auto Repair Works, sold to the plaintiff by oral contract a 1950 Plymouth two-door coach, for which the plaintiff was to pay to the defendant the sum of $495; that the car was delivered to the plaintiff, but the plaintiff never paid any money for the car or returned it; that the plaintiff therefore owed to the defendant the said sum of $495, plus interest on said indebtedness in the amount of $148.50. (3) That in September 1957, the plaintiff and the defendant entered into an oral contract in which the defendant agreed to repair for the plaintiff a Borden Milk Truck; that the repairs made totaled $50, and the plaintiff never paid for said work. It was therefore alleged that the plaintiff was indebted to the defendant in the amount of $1,265.70, which sum the defendant pleaded as a setoff against the demand of the plaintiff.
In response to the answer and plea of setoff filed by the defendant, the plaintiff moved to strike the account of setoff, and as grounds for said motion alleged the following: (1) That the account of setoff did not state a cause of action; (2) that the account of setoff did not arise out of the same cause of action; (3) that the defendant was estopped from pleading setoff on the ground of res judicata; and (4) that the defendant was estopped from pleading setoff on the ground of laches.
The cause was heard by the trial judge on the plaintiff's motion to strike the accound of setoff. The trial judge was of the opinion that the motion to strike should be sustained, and there being no further issues between the parties, since the defendant admitted the allegations of the plaintiff's declaration, it was ordered and adjudged that the plaintiff's motion to strike the account of setoff be sustained, and that the plaintiff have and recover of and from the defendant the sum of $735, together with interest thereon at the rate of six percent per annum from January 5, 1959, and all costs accrued in the cause.
From that judgment the defendant prosecuted an appeal to the circuit court without supersedeas. The cause was heard by the circuit court on said appeal from the county court on September 11, 1963, and a judgment was entered affirming the judgment of the county curt. From that judgment the appellant has prosecuted this appeal, and has assigned as ground for reversal of the judgment the following: That the circuit court erred in affirming the decision and judgment of the county court which sustained the plaintiff's motion to strike the defendant's setoff.
We think the circuit court erred in affirming the decision and judgment of the county court sustaining the plaintiff's motion to strike the defendant's setoff.
Mississippi Code Annotated sections 1481 and 1482 (1942) provide as follows:
' § 1481. Set-off pleaded. Where a mutual indebtedness exists between the plaintiff and defendant, the defendant may plead and set off against the demand of the plaintiff any debt or demand which he may have against the plaintiff; and if it shall appear that the demand of the defendant is valid and equals the demand of the plaintiff, the judgment shall be that the plaintiff take nothing by his writ and pay the costs. And if it appear that any part of the sum demanded has been paid, but that the plaintiff's demand exceeds that of the defendant, the amount paid shall be deducted, and the plaintiff shall have judgment for the residue of his demand only, with costs of suit. But if it appear that the plaintiff is overpaid and is indebted to the defendant, the defendant shall be entitled to judgment for the amount due to him against the plaintiff for the amount so found, with costs, and execution may issue therefor.
It is argued first, on behalf of the appellee, that the account of setoff attached to the defendant's answer did not state a cause of action or a valid defense against the demand of the plaintiff for the following reasons: (a) That the account of setoff did not comply with the provisions of Mississippi Code Annotated section 1482 (1942), which requires that such plea of setoff state distinctly the nature of the setoff and the several items thereof; (b) that the alleged setoff was not a mutual indebtedness as against the judgment; and (c) that the plaintiff was not and had not been indebted to the defendant in any amount, otherwise the defendant would have filed with his answer in the court of original jurisdiction the account of setoff.
We think there is no merit in the appellee's contention that the defendant's claim of setoff did not comply with Code section 1482, supra. The defendant's statement of his claim of setoff, in our opinion, showed with sufficient particularity 'the nature of the set-off and the several items thereof.'
We also think there is no merit in the appellee's contention that the several items of indebtedness stated in the defendant's claim of setoff did not constitute a mutual indebtedness as against the judgment sued on.
In construing the above mentioned section, which appears as Mississippi Code Annotated section 745 (1906), this Court in Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 66 So. 214 (1914), said: 'Our present statute (section 745 of the Code of 1906) reads: 'Where a mutual indebtedness exists between the plaintiff and defendant, the defendant may plead and setoff against the demand of the plaintiff any debt * * * which he may have against the plaintiff.'
'This language is practically the same in the Codes of 1892, 1880, 1871, and 1857.
'It will be seen that the statute contemplates a mutual indebtedness between the parties. This implies that there was a dealing together between them, so that each became indebted to the other. 'Mutual' means reciprocally acting, giving, receiving, interchanging.
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...the plea of setoff was filed did not preclude the appellant from using the items as a setoff against the debt sued on.Gerald v. Foster, 168 So. 2d 518, 524 (Miss. 1964) (citation omitted); see also Singing River Mall Co. v. Mark Fields, Inc., 599 So. 2d 938, 944 (Miss. 1992) ("[T]he defenda......
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...to claims against the plaintiffs and does not extend to a direct action against a co-defendant in the same proceeding. Gerald v. Foster, 251 Miss. 63, 168 So.2d 518 (1964). We are of the opinion the lower court erred in not permitting Nelson to testify as he was a competent Since Nelson was......