Tinley v. Martin
| Decision Date | 21 October 1882 |
| Citation | 4 Ky.L.Rptr. 327,80 Ky. 463 |
| Parties | Tinly v. Martin, & c. |
| Court | Kentucky Court of Appeals |
A note is assigned to be used by the assignee as a set-off, the assignor agrees that the assignee is to account for only so much as he gets the benefit of in the suit.
1. Held --A court of equity, where the rights of others than the obligor in the note intervene, will not sanction such a speculation by aiding the party making the venture to defeat a clear and acknowledged equity.
2. Such contracts should not be favored either by the chancellor or common law judge.
3. Where the debtor is alone involved, the rule is different.
4. A judgment that a party is not to pay a sum adjudged against him " until further ordered" is not final.
APPEAL FROM KENTON CHANCERY COURT.
JOHN F & C. H. FISK FOR APPELLANT.
1. It is clear that appellant Tinly had the right to contract for and receive the note against Martin from Hidecker & Co., and use it as a set-off. (Gen. Stat., chap. 22, sec. 26; Myers' Civil Code, secs. 128, 417; Bullitt's Code secs. 96, 387.)
2. Even if the note had been loaned to him, he could plead it. ( Otwell v. Cook, 9 B. Mon., 358; Graham v Tilford, 1 Met., 114.)
3. Busse acquired no title or right of action under the pretended assignment from Martin to him. (2 B. Mon., 81; Hubbard v. Prather; Triplett v. Helm, 5 J. J. Mar., 632; 2 Litt., 167; 7 B. Mon., 547; 5 J. J. Mar., 42; 34 Barb., 629; Freeman on Judgments, sec. 424; 20 Pick., 18; 13 Mo. 305; 5 Wheat., U.S. 277; 6 Cush., 286; 5 Mo. 483; 2 Bibb 57; 18 B. Mon., 756; 12 Bush, 140.)
4. Busse should have given appellant notice. (Day v. Billingsly, 3 Bush, 159.)
CLEARY, HAMILTON & CLEARY FOR HIDECKER & CO. AND APPELLEE BUSSE.
1. Appellant Tinly has paid nothing for the Hidecker note, and he ought not to be favored in his effort to pay his debt at fifty cents upon the dollar.
2. His attempt to purchase the claim against Martin, with the obvious purpose of making it a set-off against the assignee of Martin, and avoiding the payment of a just debt, should not be allowed, especially as Busse acted in good faith, and intervenes as a purchaser for a valuable consideration, and gave notice of his purchase.
3. The judgment is only final as to Busse.
Martin and Busse were sub-contractors under Smith, the latter having undertaken to build for Tinly a house. The two sub-contractors (Martin and Busse) having performed labor and furnished materials for the building, gave notice of their purpose to assert a lien under the mechanics' lien law. An interview was had by all the parties and their attorneys for the purpose of adjusting the trouble in regard to the lien, and it was then agreed that Smith, the contractor, should take a note held by Tinly on one McLaughlin for eight hundred and twenty-five dollars, to be assigned by Tinly to Smith, and by the latter to Martin, as the appellant contends, and as the appellees insist, was held by Martin for both himself and Busse, and that this fact was known by Tinly.
Tinly did assign the note to Smith on the 27th of June, 1874, agreeing in the assignment to be bound to Smith or his assigns in the event, after the exercise of the proper diligence by suit, the money was not made on the McLaughlin note. Smith at the same time, or on the same day, assigned the McLaughlin note to Martin by the ordinary indorsement upon it. Some time after the assignment made by Smith to Martin of the McLaughlin note Martin assigned a part of the note to Busse. McLaughlin went into bankruptcy, and the assignee Martin failing to make the money on the note, Tinly became liable by reason of the assignment.
After the insolvency of McLaughlin, the appellant Tinly ascertained that Hidecker & Co. held a note on Martin for $870, with interest, and Martin being insolvent, Tinly proposed to Hidecker & Co. to assign him the note they held on Martin that he might use it as a set-off against Martin's claim upon him by reason of the assignment of the McLaughlin note. After consulting with his attorneys, and being advised that he could use the note of Martin to Hidecker & Co. as a set-off, he, Tinly, agreed with Hidecker & Co. that, as far as he could make the note suit his purposes in that way, he would give him fifty cents to the dollar; and upon this agreement the note was assigned him on Martin. After the note was assigned, Tinly instituted his ordinary action upon it against Martin, to which Martin filed his answer, alleging that Tinly was not the real owner, and also pleading as a set-off the liability of Tinly to him by reason of the note assigned on McLaughlin.
Busse came into the case by petition and answer, insisting that a portion of the McLaughlin note had been assigned to him by Martin, and that Tinly had full knowledge of the fact that it was intended for his benefit as well as Martin's, at the time Smith made the assignment to Martin.
Tinly alleges that he had no such knowledge, and was without any notice of Busse's claim to any part of the note until after he had made the contract with Hidecker & Co., and...
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