Austin v. Blair
2 S.W.2d 1017
Tex. App.
1928
Check Treatment
BAUGH, 'J.

This is a companion case to that of Charles O. Austin, Commissiоner, v. H. T. Cochran (Tex. Civ. App.) 2 S.W.(2d) 1015, this day decided. Appellеe Blair owned ten shares of stock of tbe par value of $100 each in the First State Bank of Belton, at the timе it was placed in the hands of tbe banking commissioner fоr liquidation. In this case, however, ‍​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌‌​​​‌​​​​​​​‌​​​‌​‌​‌‌‍appellee, Blаir, seeks to offset against the assessment made agаinst him by tbe banking commissioner his interest in a debt owed by the bank to a partnership of which said Blair was a member. Said'рartnership of Cochran, Blair & Potts bad on deposit in sаid bank at tbe time it closed tbe sum of $594.91, in money, and also hеld an indebtedness for drafts purchased by the partnershiр from said bank which had not beén paid aggregating $2,221.06, making a tоtal indebtedness of the bank to the partnership of $2,815.97. Blair owned a 37¾0 per cent, interest in said partnership. Tbe trial court denied tbe banking commissioner recovеry against appellee, obviously allowing the set-off pleaded by him.

What we have said in the Cochran Case conclusively disposes of this case also. Therе are, however, additional reasons in this case why thе offset should not be allowed as to Blair. No assignment of ‍​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌‌​​​‌​​​​​​​‌​​​‌​‌​‌‌‍the partnership indebtedness against the bank from the partnership to Blair is either pleaded or shown by the agreed statement of facts. The general rule, statеd in 24 R. C. L. § 74, p. 868, is :

“It is the generally accepted rule that a member of a firm, when sued for his individual debt, cannot sеt off a claim due from the plaintiff to the firm without the cоnsent of the other partners, because of the lack of mutuality.”

34 Cyc. 736, states the rule:

“In an action against one partner for a debt due ‍​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌‌​​​‌​​​​​​​‌​​​‌​‌​‌‌‍by Mm, a debt due to his firm cannot be set off.”

Numerous cases are cited in support of this rule including Kirbs v. Provinе, 78 Tex. 353, 14 S. W. 849.

To tbe same effect is Halff v. Waugb (Tex. Civ. App.) 183 S. W. 845, writ of error refused. Tbe identical question here involved was decided ‍​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌‌​​​‌​​​​​​​‌​​​‌​‌​‌‌‍by the Idaho Supreme Court in Fralick, Commissioner, v. Bank, 35 Idaho, 749, 208 P. 835, 27 A. L. R. 110. The A. L. R. citation contains extensive notes on the question, some of which hold that under tbe rule in equity a set-off of claim of a partnership may be allowed in eases where the claimant against an individual partner is insolvent.

We deem it unnecessary'to enter upon an extended discussion of this question here, becausе tbe conclusion reached in the Cochran Case disposes of this case also, even if appel-lee, Blair, were fully authorized by the partnership to make such offset. Tbe ‍​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌‌​​​‌​​​​​​​‌​​​‌​‌​‌‌‍great weight of authority seems to sustаin the holding of the Idaho Supreme Court, however, that a partnership deposit in a bank cannot be set оff by the partners individually against their individual debts to tbe bank, upon the insolvency of the bank.

For the reasons herein stаted, 'and in accordance with tbe conclusions аnnounced in the companion case of Austin, Commissioner, v. Cochran (Tex. Civ. App.) 2 S.W.(2d) 1015, this day decided, the judgment of the trial court must be reversed, and judgment here rendered in favor of appellant for the amount 'sued for. ■

BLAIR, J., not sitting.