Slayback v. Jones

• Decision Date: 27 November 1857
• Citation: 9 Ind. 448
• Parties: Slayback and Another v. Jones
• Court: Indiana Supreme Court

9 Ind. 448

Slayback and Another v. Jones

Supreme Court of Indiana

November 27, 1857

From the Tippecanoe Court of Common Pleas.

The judgment is affirmed, with 1 per cent. damages and costs.

Godlove S. Orth and John A. Stein, for appellants.

Robert C. Gregory, Hiram W. Chase and John A. Wilstach, for appellee.

OPINION

Perkins J.

This was an action on a promissory note made by the defendants below to Nelson Littleton and Ambrose L. Vorhis, for 533 dollars and 33 cents, dated September 2, 1854, and by them assigned to Jones.

Answer in two paragraphs--

1. Payment before suit brought.

2. That the defendants below had suffered damages to the amount of 800 dollars, through the wrongful acts of the payees connected with the transactions upon which the note was founded, as follows; that the note was given in part payment for the interest of the payees in a tract of land, being, etc., which they held by title-bond from one Ellsworth and which they assigned to Solomon Slayback at the date of the note; that Amaziah Slayback was merely surety in the note; that Solomon went into possession of the land on the 2d of September 1854--the date of the note--and "that afterwards, viz during the month of October, 1854, said Littleton and Vorhis, wrongfully and without license, entered upon said tract, and wrongfully and unlawfully gathered the crop of corn there standing in stock on the same, and carried it away and converted it to their own use, through which the said defendant, Solomon, was damaged 800 dollars."

To the first paragraph of the answer, the plaintiff replied, denying the payment.

To the second paragraph of the answer, the plaintiff below demurred, on the ground that the facts set up were subsequent to and independent of the giving of the note; that they were trespasses; that they were causes of action in favor of Solomon Slayback, and not in favor of both defendants below; and that they were not the subject of a set-off or counter-claim.

This demurrer was sustained, and the issue on the first paragraph of the answer was tried by the Court, and resulted in finding a judgment for the amount of the note and interest. The evidence is not set out.

The only question in the record is as to the propriety of sustaining the demurrer to the second paragraph of the answer.

The case, still more shortly stated, is, substantially, this: Littleton and Vorhis, the payees of the note, and who, for the sake of simplicity of statement, may be regarded as the plaintiffs in this suit, sold a piece of land, including the crops upon it, to Solomon Slayback, taking his note for the purchase-money, and putting him in possession. They shortly afterwards took away from the land the crops, which formed a part of the consideration of the note. They now sue upon the note. Slayback sets up, by way of counter-claim, the value of the crops removed. Littleton and Vorhis deny his right to do this, because, they say, they took the crops by way of trespass, and because the suit is against Solomon Slayback and his surety on the note.

This second position may be passed, with the remark that if the defense by way of counter-claim, can be set up against the note, it may be done by both, as well as it might be by the principal, were the suit against him alone. Springing, as a counter-claim must, out of the transaction itself, it may be set up by all parties defendant, equally as a payment by the principal, or a failure of consideration might be.

The defenses which may be set up to suits on promissory notes vary according to circumstances. Want and failure of consideration, breach of warranty, fraud, payment, set-off, and recoupment, have heretofore been familiar to the profession--the latter, however, the least so. Yet it is a common-law term and defense. See Sedg. on the Measure of Damages, 427, et seq. It was called, also, counter-claim. Indeed, in attempting to define it, writers and judges have said it was a counter-claim. Such was the use and definition of the term in the Reports of decisions in this state. Doremus v. Bond, 8 Blackf. 368; Epperly v. Bailey, 3 Ind. 72, and note; Clark v. Wildridge, 5 Ind. 176; Estep v. Morton, 6 Ind. 489 ^[1]. They seemed to run together. A counter-claim was the pleading under which a recoupment was had. Most of these modes of defense have been adopted to avoid circuity of action, more strictly, cross actions, and are to be favored. Sedgwick, supra.

The definition in our R. S. 1852, of counter-claim is identical with the previous definition in the American reports of recoupment, and it is the same thing. See, Epperly v. Bailey, supra a.

UNKNOWN a This statement is criticised in Woodruff v. Garner, 27 Ind. 4. But see dissenting opinion of Elliott, J., in Vail v. Jones, 31 Ind. on p. 472.

If then, the claim in this case could have been recouped, it may be set up by way of counter-claim. If it can be regarded as fairly a...