Hopkins v. Fechter
| Decision Date | 31 January 1871 |
| Parties | GEORGE W. HOPKINS, Defendant in Error, v. GEORGE FECHTER Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to First District Court.
This was an action upon a note and upon two accounts.
McCord, and Ewing & Smith, for plaintiff in error.
The court erred in striking out the defendant's answer. The only question in the case is the right of the defendant in equity to make this defense. We hold that it is his only remedy, and that it is authorized by law. (Field v. Oliver, 43 Mo. 200; 2 Sto. Eq. Jur., § 1436 et seq.; Collins v. Farquhar, 4 Litt. 154; Jones v. Waggoner's Adm'r, 7 J. J. Marsh. 144; Clark v. Cort, Craig & Phil. 153; Pond v. Smith, 4 Conn. 302; 2 Paige, 581; 7 Monr. 455; 3 Binn. 135; 2 Burr. 825; 3 Johns. Ch. 574; 11 Verm. 96; 6 Paige, 118; 6 Conn. 16.)
E. L. King & Bro., for defendant in error.
The defendant, in his answer, admits his indebtedness to the plaintiff according to the allegations of the petition, but avers that the plaintiff is insolvent, and that the defendant is liable, as the plaintiff's surety, upon an over-due promissory note to a third party; that a suit has been commenced to foreclose a mortgage given by the plaintiff to secure the note, and that the mortgaged property, in the opinion of the defendant, will prove insufficient to pay said note in full. The defendant therefore prays that the present suit be enjoined until it shall be ascertained by the results of the foreclosure suit whether any balance will remain upon said note after applying the proceeds of the mortgaged property, which the defendant may hereafter be called upon to pay.
Numerous authorities have been cited by the defendant's counsel which affirm the doctrine of equitable offsets. But this is not a case of that character. The answer discloses no existing claim in favor of the defendant against the plaintiff, either legal or equitable, nor does it disclose grounds for an injunction.
The judgment in favor of the plaintiff was for the right party and will be affirmed.
The other judges concur.
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Haeussler v. Greene
...Mo. 399. That the payee is indebted to the maker, and insolvent, makes no difference in a suit on the notes by the transferee.-- Hopkins v. Fechter, 47 Mo. 331. S. S. MERRILL, for the respondent: If the appellant sues as Gambs' representative, certainly he cannot ask a judgment against resp......
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Burnes v. Scott
...886, and see sections 881, 882; Eden, Inj. c. 2, p. 3; Waterlow v. Bacon, L. R. 2 Eq. 514; Hibbard v. Eastman, 47 N. H. 507; Hopkins v. Fletcher, 47 Mo. 331; Tommey v. Ellis, 41 Ga. 260. It is clear, therefore, that the matters set up in the third plea were proper for the consideration of a......
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... ... must have owned it, and it must have been due at the time of ... the institution of the suit. Hopkins v. Fetcher, 47 ... Mo. 331; Reppy v. Reppy, 46 Mo. 573; Waterman on ... Setoff, sec. 381; Smith v. Spengler, 83 Mo. 412. The ... filing of the ... ...
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