Pool v. Delaney

• Decision Date: 31 July 1848
• Citation: 11 Mo. 570
• Court: Missouri Supreme Court
• Parties: POOL & HEATHMAN v. DELANEY & BALDWIN.

11 Mo. 570

POOL & HEATHMAN

v.DELANEY & BALDWIN.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM MONROE CIRCUIT COURT.

TODD, for Appellants.

1st. The assignment of the complainants' note to Sparks did not deprive him of any equity he had against the obligee. Mo. Digest, 105; 7 Mo. R. 524.2nd. The indebtedness charged is such, that by statute, or in equity, might be plead to the note. Mo. Dig. 578, and infra. 3rd. The obligee's non-residence and insolvency, are in equity, additional grounds of relief against the assigned note. 2 Litt. 85; 3 Litt. 292; 6 Dana, 32, 305; 7 Porter, 549; 2 Story's Eq. 662.

GLOVER & CAMPBELL, for Appellees.

1st. There is no case of insolvency or non-residence presented by the bill to affect the rights of Delaney, if the matter constituted a good set-off as against Baldwin, his assignor. The charge in the bill, that in 1844 Baldwin had no effects in the State, and had left the county, may create a presumption that he was insolvent in this State. at the filing of the bill in 1845--but is no averment of the fact. 2 Am. Ch. Dig. 519, No. 1, 2, 3. What was the condition of Baldwin at the assignment does not appear. 8 Dana, 164. If Pool neglected to make his debt when he could, and did not, he will not be helped against an assignee. 2nd. The matter presented by the bill, and offered to be proved, was no ground of relief against an assignee--equity follows the law, and will in cases of hardship, set up legal offsets, where the remedy at law is deficient--but no such case is presented here; there is no legal right to be aided by the court. Rev. Code 1845, p. 105, § 3. The assignee is bound to credit only legal offsets, and he purchases with a view to them, but ought not to be affected by such demands as this.

NAPTON, J.

This was a bill in chancery, to enjoin proceedings upon a judgment at law obtained by the administrator of James J. Sparks against Pool, and his security, Heathman. The facts stated by the bill were these. In 1837 Pool purchased of Baldwin one-half of his horse, Washington, for $500; $200 of which he paid, and gave his note for $300. Pool paid on this note, at different times, $220, which was credited on the note. It was agreed between Pool and Baldwin, that Pool should have the control of the horse, and that the expenses of his keeping should be equally borne by him and Baldwin, and the profits should be equally divided. The horse died in 1844, and Pool alleges, that the expenses of keeping the horse, including a reasonable compensation for his services, as superintendent, exceeded his profits--and that Baldwin assigned his note, shortly before the death of the horse, to Sparks, and before any settlement of their partnership concerns. Baldwin left this country shortly after, without leaving any visible property here. Sparks brought suit on the note before a justice, where Pool attempted to set off this indebtedness on the part of Baldwin, but the set-off was not allowed. The case was appealed to the Circuit Court, where the same set-off was again offered and rejected, and a judgment went against Pool. The prayer of the bill is now for an injunction, and a decree for the balance alleged to be due Pool.

Sparks' administrator answered, admitting the consideration of the note, but denying all indebtedness on the part of Baldwin, and calling for proof. Baldwin, in his answer, denies all indebtedness, and insists that Pool is still his debtor in the partnership transaction. He admitted his residence in Virginia since the assignment, and that he left no property here, except his claims against Pool.

Replioations were filed, and the case was set for hearing. On the hearing, after the bill, answers and exhibits were read, ...