Momsen v. Noyes

• Decision Date: 02 February 1900
• Citation: 105 Wis. 565,81 N.W. 860
• Parties: MOMSEN v. NOYES.
• Court: Wisconsin Supreme Court

105 Wis. 565

81 N.W. 860

MOMSEN

v.NOYES.

Supreme Court of Wisconsin.

Feb. 2, 1900.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Action by William H. Momsen, as assignee of Frederick T. Day, against Francis W. Noyes, for a debt due his assignor. A demurrer to a set-off pleaded by defendant was overruled, and plaintiff appeals. Affirmed.C. T. Hickox, for appellant.

Hoyt & Olwell, for respondent.

WINSLOW, J.

This is an action by the assignee under a voluntary assignment of one Frederick T. Day to recover $4,186.07, with interest, upon a balance of account for services rendered and money paid out by Day for the benefit of the defendant. The defendant's answer contained, by way of counterclaim and set-off, certain allegations showing that Day was appointed at various times long prior to the voluntary assignment, by certain courts of Milwaukee county, as guardian of certain minors and trustee of certain trusts, and that he received certain large sums of money by virtue of each of such trust appointments, and that the defendant became surety for Day upon the bonds given by him upon each of such appointments; also, that Day had converted to his own use large portions of each of said trust funds prior to his voluntary assignment, and that at the time of such assignment he was utterly insolvent, and has since been discharged in bankruptcy. It is further alleged that in various legal proceedings since the assignment the defendant has been compelled to pay on account of his liabilities as such surety in two of said trusts more than $1,600, and that litigation is still pending and undetermined to enforce defendant's liabilities as surety in the remaining two trusts, in which defendant's liability will amount to more than $2,000. A general demurrer to the counterclaim was overruled, and the plaintiff appeals.

That the allegations demurred to entitle the defendant to insist upon the right of equitable set-off cannot be doubted. The voluntary assignee of Day stands in no better position in this action than Day himself would had he made no assignment. He represents the creditors only in a limited degree, and for the purpose of prosecuting actions to set aside fraudulent transfers and preferences of various kinds. Rev. St. 1898, § 1693b. His capacity to represent creditors is limited by the statute, and the statute clothes him with no additional right in a case like the present. Kyes v. Furniture Co., 92 Wis. 32, 65 N. W. 735. The rights of the parties were fixed at the completion of the assignment. Johnson v. Humphrey, 91 Wis. 76, 64...