O'Neill v. Perryman

• Decision Date: 13 February 1894
• Citation: 102 Ala. 522,14 So. 898
• Parties: O'NEILL v. PERRYMAN.
• Court: Alabama Supreme Court

14 So. 898

102 Ala. 522

O'NEILL v. PERRYMAN.

Supreme Court of Alabama

February 13, 1894

Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.

Bill by William E. Perryman against John O'Neill to restrain execution of a judgment, and to establish and equitable set-off. From a decree granting the relief prayed, and directing judgment for defendant for the balance due him after deducting the amount of complainant's set-off defendant appeals. Modified and affirmed.

The bill prayed to enjoin the collection of a judgment in favor of O'Neill against Perryman, for $864. This judgment was recovered in the following manner: Perryman sued O'Neill for a debt of $185 evidenced by a promissory note. O'Neill filed a plea of recoupment and set-off, claiming damages for the conversion of certain personal property by the complainant, Perryman. As the outcome of this plea, and the issue thereon, O'Neill recovered a judgment against Perryman for $864. The bill alleges the insolvency of said O'Neill, and seeks to set off against said judgment recovered by O'Neill in the circuit court, the following alleged claims: (1) The judgment of $43.30 and costs recovered before W. T. Poe, justice of the peace, on July 26 1889. (2) One-half of $246.16, that being the amount of the judgment (together with interest thereon and costs of suit) obtained by one Goodell in the Birmingham city court against O'Neill and Perryman jointly, which said Perryman was compelled to pay on December 27, 1889. (3) The sum of $192 with interest thereon, from May 1, 1888, for the rent of a certain house, which O'Neill leased from Perryman during the month of April, 1888. (4) The sum of $231, with interest thereon, from the 1st day of July, 1888, for the rent of a certain house, which said O'Neill and one Regan jointly leased from the complainant, and occupied during the months of May and June, 1888. (5) The sum of $209, with interest thereon, from April 1, 1888, as balance of the rent due by the firm of D. Kennedy & Co., of which O'Neill was a partner, for the rent of a house alleged to have been occupied by said Kennedy & Co. from the 1st of July, 1888, to the 26th day of March, 1889.

The prayer of the bill was for the establishment of these several demands as equitable set-offs against the said judgment, and for an injunction to restrain the said O'Neill from the collection of said judgment. The complainant offered to do equity, and submitted himself to the jurisdiction of the court in that behalf. The defendant moved to dismiss the bill for the want of equity, and also demurred to the said bill on the grounds, that the complainant had an adequate remedy at law; that said bill of complaint shows that if said claims were true and just, the complainant could have reduced the said claims to judgment in a court of record, and have set off the same against the respondent's judgments; and because the said alleged items claimed by said Perryman against O'Neill are not matters of account over which a court of chancery can be invoked to settle, but are purely matters of cognizance in a court of common law. There were other grounds of demurrer, which it is unnecessary to set out. The defendant, O'Neill, also filed an answer fully denying his insolvency and the existence of said alleged claims of Perryman against him. In said answer O'Neill set up, as to the first item claimed by Perryman, that he was never served with process from Poe's court, and asked to be allowed to set off against the said alleged claim a sufficient sum due from the partnership of Perryman & O'Neill. As to the second item, the defendant set up, that he and Perryman were engaged in the refrigerator business, as partners, and that the partnership affairs have never been settled up; that the said Goodell debt was a debt against the said partnership; and that Perryman was indebted to the said O'Neill on said partnership account in a sum more than sufficient to satisfy O'Neill's part of said Goodell debt. As to the next items, those for the rent of a certain house during the months of April, May and June, the defendant set up that the rent was paid, by the making of certain repairs on the house occupied by him. As to the last item, the rent due by Kennedy & Co., the answer set up that the same has been fully paid. The defendant asked that his answer be taken as a cross bill, and prayed that the partnership affairs of Perryman & O'Neill be settled, and that the amount due said O'Neill on partnership account be ascertained, and a decree be rendered in his favor therefor. The complainant demurred to the cross bill, on the ground that it set up matters which have no connection with the subject-matters of the original bill, and which are independent and distinct subjects of litigation. The cause was submitted on the demurrers to the original and cross bill, and motion to dismiss. The demurrer to the original bill was overruled, as was also the motion to dismiss the original bill; and the demurrer to the cross bill was sustained. The defendant then amended his answer by striking out that portion making it a cross bill, so as to make it a simple answer.

As shown by the testimony, the following facts were undisputed: That H. C. Goodell recovered a judgment against W. E. Perryman and John O'Neill, as partners, which was paid by Perryman, December 27, 1889; that O'Neill rented the Lincoln House from Perryman and occupied the same during the month of April, 1888; that O'Neill and one John Regan rented said house from Perryman and occupied the same through the months of May and June, 1888; that D. Kennedy & Co., of which John O'Neill was a partner, on July 5, 1888, executed to the complainant, W. E. Perryman, a lease for said Lincoln House for a period of 2 years, 7 months and 11 days-the date when said lease was annulled, and when Perryman re-entered, is a disputed fact; that Perryman obtained a judgment against D. Kennedy on promissory notes for the sum of $119.35 on September 9, 1889; that these claims of Perryman set up in his bill, if not liquidated and discharged as claimed by defendant, all existed and were past due at the time Perryman brought his suit in the circuit court against O'Neill, and at the time the judgment therein was rendered for O'Neill against Perryman on his plea of recoupment.

The testimony as to the disputed fact of O'Neill's insolvency is sufficiently stated in the opinion. O'Neill denies having been served with process in the suit in the justice of the peace court, and while he admits the correctness of the Goodell judgment, attempted to show by his evidence that Perryman was indebted to him, on partnership account, in a sum greater than his half of said judgment. Perryman, however, testified that the partnership matters between him and O'Neill had been settled. As to the rent for the Lincoln House from O'Neill for April, 1888, and from O'Neill and Regan for May and June, 1888, Perryman testified that said sums were owing him, after deducting all payments made by O'Neill and O'Neill and Regan. O'Neill, on the contrary, testified that he had done certain work on the house, and that Perryman had agreed that the repairs done should be considered as payment of the balance due on the rent for the months of April, May and June. He was corroborated in this testimony by two other witnesses, but these witnesses were impeached by Perryman. The testimony in reference to the rent due by D. Kennedy & Co. is sufficiently stated in the opinion.

The chancellor rendered a decree in favor of the complainant, and ordered that it be referred to the register to ascertain and report how much was due complainant on each of his said alleged claims, and how much, if anything, was due defendant on his judgment, after deducting therefrom the amounts so ascertained to be due complainant. The register held a reference, and reported that there was due the complainant, first, on the judgment rendered in the court of justice Poe, $59.20. Second. On the Goodell judgment, $152.61. Third. For the rent of the Lincoln House for April, 1888, $266.92. Fourth. For rent due by D. Kennedy & Co. $92.14. Fifth. For the rent of the Lincoln House for May and June, 1888, $318.78; and that after deducting all claims to be justly allowed complainant, there was a balance due to the defendant from the complainant of $195.65. The defendant filed separate exceptions to each item as thus reported by the register. On June 23, 1893, the defendant's exceptions to the report were overruled, and on July 8, 1893, a decree was rendered by the chancellor declaring that said claims of the complainant, as reported by the register, be set off against said judgment of John O'Neill, and the same be satisfied to that extent, and that said John O'Neill have and recover of said W. E. Perryman $195.65; and it was further decreed that said O'Neill pay the costs of the court. From the several decrees in the cause, on demurrers, as well as on facts, the defendant appeals, and assigns the same as error.

Mountjoy & Tomlinson, for appellant.

Ward & John, for appellee.

HARALSON J.

Although the mere existence of mutual and independent demands, does not authorize the interposition of a court of equity to set them off against each other, yet, where there is some intervening equity...