Mcallister v. Millhiser

• Decision Date: 29 July 1895
• Citation: 96 Ga. 474,23 S.E. 502
• Parties: McALLISTER et al. v. MILLHISER et al.
• Court: Georgia Supreme Court

23 S.E. 502

96 Ga. 474

McALLISTER et al.

v.MILLHISER et al.

Supreme Court of Georgia.

July 29, 1895.

Action on Account — Set-Off — Damages for Conversion—Action against Partnership—Individual Defenses.

1. Where a partnership is sued upon an open account, it may plead as a set-off that it has been damaged in a given amount because of the plaintiff's wrongful refusal to return to it certain promissory notes belonging to it, which had been pledged as collateral security for the payment of another debt due to the plaintiff, which debt had, before the bringing of the plaintiff's action, been fully paid off and discharged, and a return of the collaterals duly demanded.

2. Where one of the members of a partnership composed of two persons has bought out the interest of his partner in all the assets of the firm, and assumed all its liabilities, it is competent for him to plead, as a set-off to an action subsequently brought, not only against the partnership, but also, in express terms, against the individual members thereof, that by reason of his ownership of said assets he holds against the plaintiff a personal claim or demand, which still remains unsatisfied.

3. The court erred in striking the special pleas of the defendants.

(Syllabus by the Court.)

Error from superior court, Habersham county; C. J. Wellborn, Judge.

Action by Millhiser & Co. against A. H. McAllister and another, partners as McAllister & Simmons. There was a judgment striking out pleas, and defendants bring error. Reversed.

J. W. Owens, and J. B. Jones, for plaintiffs in error.

Geo. P. Erwin, for defendants in error.

LUMPKIN, J. An aetion upon an open account was brought by Milihiser & Co. against McAllister & Simmons, as a partnership, and also expressly against A. H. McAllister and J. B. Simmons, who appear to have been the members composing that firm, in their individual capacity. Certain pleas of the defendants were stricken by the court, which is the error complained of in the bill of exceptions.

1. One of these pleas alleged, in substance, that the partnership had delivered to the plaintiffs certain promissory notes belonging to the partnership as collateral security for the payment of another debt due to the plaintiffs, which debt, before the bringing of the present action, had been fully paid off and discharged; that a return of these collaterals had been duly demanded; that the plaintiffs had wrongfully refused to return the same; and that the defendants, as a partnership, had been thereby damaged in an amount stated. This plea set forth the facts in great detail, but the foregoing is, in condensed form, what it amounted to. We are at a loss to perceive why this was...