Kinsey v. Ring
| Decision Date | 06 December 1892 |
| Parties | KINSEY ET AL. v. RING. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Clark county; A. W. NEWMAN, Judge.
Suit on account by James H. Kinsey and James Hill against Merritt C. Ring, as administrator of the estate of Levi Archer. Judgment for plaintiffs. Defendant appeals. Affirmed.
The other facts fully appear in the following statement by LYON, C. J.:
This is an action to recover $350 for flour and feed sold to the defendant's intestate, Levi Archer, by W. S. Colburn, on credit, before September 7, 1885. The account was duly assigned by Colburn to plaintiffs at that date. The plaintiffs paid Colburn a valuable consideration therefor. In April, 1885, Archer and three others indorsed two promissory notes of Colburn, dated April 18, 1885, for $1,241.20 each, due in two and three years from date, respectively, with 8 per cent. interest. Archer and the others were accommodation indorsers of the notes. Colburn was insolvent when he assigned the claim in suit to plaintiffs, has remained so ever since, and has paid nothing on the notes. This action was commenced after one of the notes became due, and the liability of Archer to pay it had been fixed by due demand, notice, and protest, and after the holder thereof had brought suit upon it against Archer and the other parties to the instrument. Archer pleaded the above facts as an equitable counterclaim and set-off to the account in suit herein. This action was originally brought against Archer, who died thereafter, and has been revived and continued against Mr. Ring, the administrator of his estate, duly appointed and qualified. The circuit court held that the liability of Archer on the notes thus indorsed by him is not the proper subject-matter of an equitable set-off against the demand of the plaintiffs, and gave judgment for them for the amount of their claim. The defendant appeals from the judgment.Ring & Youmans and M. C. Ring, for appellant.
R. J. MacBride, for respondents.
LYON, C. J., ( after stating the facts.)
Had the notes, or either of them, upon which Archer was an accommodation indorser for Colburn, been due, and had the proper proceedings been taken to fix his liability thereon as an indorser before Colburn assigned the demand in suit to plaintiffs,--Colburn being then insolvent,--it will be assumed for the purposes of this appeal that an equitable set-off because of such liability might be enforced against the claim and demand of pla...
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