Patrick v. Petty

• Decision Date: 23 February 1888
• Citation: 83 Ala. 420,3 So. 779
• Parties: PATRICK v. PETTY.
• Court: Alabama Supreme Court

3 So. 779

83 Ala. 420

PATRICK v. PETTY.

Supreme Court of Alabama

February 23, 1888

Appeal from circuit court, De Kalb county; JOHN B. TALLY, Judge.

Action of assumpsit brought by the appellant, J. M Patrick, as administrator of the estate of one Martha Yeargin, deceased, against the appellee, Thomas W. Petty. The plaintiff introduced in evidence, as the foundation of his suit, a note made by the defendant to plaintiff's intestate for the amount sued for, proved its execution, and here rested his case. The defendant pleaded the general issue and set-off, and to sustain his plea of set-off introduced in the evidence, as shown by the bill of exceptions, an oral agreement with the plaintiff's intestate that, if he would board her, she would allow him a reasonable compensation therefor. It was further shown that the note here sued on was given for the payment of the rent of certain land owned by the plaintiff's intestate; and that by the oral agreement, made at the time of the defendants signing the said note, it was understood and agreed by and between the plaintiff's intestate and the defendant that, if he would take care of and board the said Mrs. Yeargin, she would consider that service and board as payment of the said note. It was shown that the plaintiff's intestate died some time during the month of September of the year in which the said agreement was to prevail, the note and agreement having been made and dated from the first day of January, 1884. The defendant sought to set off so much as he might reasonably be entitled to, according to this agreement, against the demand of the plaintiff, and asked charges in writing to that effect; which the court gave, and to the giving of which the plaintiff excepted. The plaintiff contended that as the agreement was an entirety, and, on account of the death of his intestate, it could not be fulfilled, it could not be pleaded as a set-off to this action, and that the set-off did not apply to a case like the present; and he asked the court to give charges to this effect, which were in writing. The court refused to give the charges asked by the plaintiff, and he thereupon excepted.

Aiken & Martin, for appellant.

No counsel for appellee.

STONE C.J.

There were several rulings in this case which render a reversal necessary, but we do not propose to consider them in detail. We will declare the principles governing the questions raised, which will furnish a sufficient guide on another trial. Set-off, in its nature, is a cross-action, and is governed by the rules which pertain to a suit on a moneyed demand. There are exceptions, one of which is that the statute of limitation is no defense to such plea or cross-action where the claim offered to be...