Nill v. Comparet

• Decision Date: 29 May 1861
• Citation: 16 Ind. 107
• Parties: Nill and Another v. Comparet
• Court: Indiana Supreme Court

16 Ind. 107

Nill and Another v. Comparet

Supreme Court of Indiana

May 29, 1861

APPEAL from the Allen Common Pleas.

The judgment is affirmed, with 5 per cent. damages and costs.

Wm. H Combs, for the appellant.

Withers and Morris, for the appellee.

OPINION

Davison J.

The appellee, who was the plaintiff, sued Nill and Miller upon a promissory note for the payment of $ 311. The note bears date February 1, 1858, and was payable to one Thomas Meegan, who assigned it to the plaintiff. Defendants' answer contains five paragraphs to which the plaintiff replied. There was a verdict for the plaintiff, upon which the Court, over a motion for a new trial, rendered judgment. This case is before us upon a reserved question of law, arising upon a demurrer to the reply to the fourth and fifth paragraphs of the answer.

The fourth paragraph alleges that Meegan, before he assigned the note, was, and still is, indebted to Nill $ 700, upon an account, which is filed with the pleading and offered as a set-off against the plaintiff's demand. The fifth states these facts: Nill is the principal in the note in suit, and Miller is his surety. During the year ending in May, 1857, Meegan, the assignor of the note, was the city treasurer of Fort Wayne, and Nill became his immediate successor in office. In that month he was qualified as such successor when it became the duty of Meegan to pay over to him, Nill, any balance then in the city treasury. At that time, Meegan represented to Nill that there was a balance of $ 781, then on deposit in Hamilton's Bank, in the city of Fort Wayne; and Nill, relying on his representation, receipted to him, Meegan, for that amount, as such treasurer, and took from him authority to draw the same out of the bank. After Nill became treasurer, Meegan continued to perform the duties of the office, as Nill's deputy, and still continued to deposit moneys received into the city treasury in Hamilton's Bank. At the time the note sued on was given, Nill was not advised of the true state of the bank account, or of the state of the deposits therein; and it was then stipulated that they, Meegan and Nill, should subsequently meet and settle that account, and if any balance should be found due to Nill, the same should stand as a credit on said note. As stipulated, the parties met, and upon examination of said accounts a balance of $ 325 was found due from Meegan to Nill; and Meegan having refused to credit the note with the amount so found due, the same is, therefore, a proper set-off in this action. It is averred that Comparet, the assignee, had, at the time...