Way v. Colyer

• Citation: 54 Minn. 14,55 N.W. 744
• Parties: WAY v COLYER.
• Decision Date: 28 June 1893
• Court: Supreme Court of Minnesota (US)

54 Minn. 14

55 N.W. 744

WAYvCOLYER.

Supreme Court of Minnesota.

June 28, 1893.

(Syllabus by the Court.)

1. In an action on a judgment, by an assignee thereof, the defendant may set off an indebtedness of the assignor, the original judgment creditor, to him, existing at the time of the assignment.

2. As respects promissory notes made in a foreign state by a resident thereof, the statute of limitations of this state does not bar an action against the maker, in the absence of proof that he had become a resident of this state. The action is not barred by the law of the foreign state, in the absence of proof of the foreign law.

Appeal from district court, Traverse county; Brown, Judge.

Action on a judgment by Frank A. Way against C. H. Colyer. Defendant had judgment, and plaintiff appeals. Affirmed.

J. Bohmbach, for appellant.

W. H. Townsend, for respondent.

DICKINSON, J.

This is an action upon a judgment recovered by one Thing against this defendant, in the state of Wisconsin, in August, 1887. In October, 1887, Thing assigned the judgment to one Benjamin F. Way, and in January, 1891, the latter assigned it to this plaintiff. In 1879, in the state of Wisconsin, Thing executed to this defendant his promissory notes for considerable sums, payable at different times in the year 1880, and which have never been fully paid. The defendant held these notes against Thing when the latter assigned his judgment to Way. In this action the defendant pleaded these notes as a set-off, and this defense was sustained by the court. We hold, in accordance with the ruling of the court below, that this indebtedness of Thing to the defendant on the notes, existing at the time of the assignment of the judgment, was allowable as matter of set-off, to defeat a recovery in this action. The assignment of the judgment was, as the statute declares, “without prejudice to any set-off or other defense existing at the time of, or before notice of, the assignment.” Gen. St. 1878, c. 66, § 27. The assignee acquired the judgment subject to any set-off or other defense which would have been available to the judgment debtor as against the assignor, the original judgment creditor. Brisbin v. Newhall, 5 Minn. 273, (Gil. 217.) And see La Due v. Bank, 31 Minn. 33,16 N. W. Rep. 426. If Thing, without having assigned his judgment, had prosecuted an action like this, to recover on the judgment, the defendant would have been allowed to set off the counter indebtedness of the former on his promissory notes then held by the defendant. Such a counter-claim would have been authorized, within the the terms of our statute. “In an action arising on contract, any other cause of action, arising also on contract, and existing at the commencement of the action.” Gen. St. 1878, c. 66, § 97, subd. 2; Taylor v. Root, *43 N. Y. 335. The action on the judgment is, within the meaning of the statute, an action arising on contract, a judgment being a contract of record. 1 Chit. Cont. (11th Amer. Ed.) 2, 3; Taylor v. Root, supra; O'Brien v. Young...