Jordan v. Holmes

• Citation: 59 So. 809,102 Miss. 487
• Decision Date: 28 October 1912
• Docket Number: 15,880
• Parties: T. N. JORDAN v. HOLMES & HERRICK
• Court: United States State Supreme Court of Mississippi

59 So. 809

102 Miss. 487

T. N. JORDAN v. HOLMES & HERRICK

No. 15,880

Supreme Court of Mississippi

October 28, 1912

APPEAL from the circuit court of Harrison county, HON. GEO. S DODDS, Special Judge.

Suit by T. N. Gordan against Holmes & Herrick in which defendant filed a plea of set-off. From a judgment over for defendants plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

J. H Mize, for appellant.

By section 3117, Code of 1906, Holmes & Herrick were entitled to plead this set-off to the extent of the amount demanded by Jordan; because, if they held the set-off as they claimed against Jordan, then they had a right, even though it was barred by the statute of limitations, to plead it to the extent of the amount Jordan claimed they owed him, but, under Field v. Coleman, 72 Miss. 545, they could not recover against Jordan on this set-off anything over the amount that Jordan claimed they owed him.

In said case, at p. 548, the court makes use of the following language:

" . . cases in which persons having mutual and subsisting demands against each other, which might be used by either as a set-off in a suit brought by the other, the right of one becomes barred by limitation, and thereafter the other sues upon his unbarred claim. In such cases, the right of the defendant to interpose his demand, though barred, defensively, is preserved. He may not recover over against the plaintiff, but may defeat any recovery by the plaintiff.

It was not necessary nor could the appellant plead the statute of limitations to the set-off, because it would be of no avail to the extent of the amount Jordan might owe Holmes & Herrick, if any, because the appellees had the right to use the set-off, though barred, to the extent of the amount Jordan was demanding against them, and the appellant could not plead the statute of limitations; but the appellees could not recover against Jordan any excess of their demand above that of Jordan, and the appellees had no right to an instruction for any excess and its being granted we contend is reversible error.

Appellee recognized that the account became due November 14, 1908, the date of the last item thereon, because the instruction told the jury to find interest from the date on any excess, and of course interest would not accrue till it was due.

We submit that, for the giving of said instruction, appellant is clearly entitled to a reversal of this case, and for the further errors assigned, to wit: because the verdict is contrary to the law and the evidence and because it was error to overrule appellant's motion for a new trial.

Ford, White & Ford, for appellees.

It is true that the court in Field v. Coleman, 72 Miss. 545, cited by counsel for appellant, uses language to the effect that a "set-off, barred, may be used defensively, but it cannot be used as a basis for a judgment against plaintiff for any excess," but in that case the court had reference to cases, such as the one then before it, where the set-off was barred before the beginning of the suit, and the question here presented was not before the court in that case.

The wisdom of that provision of section 3117 above quoted is well exemplified by attachment...