8 Mo. 309 | Mo. | 1843
delivered the opinion of the Court.
This was an action, commenced by petition in debt, on a note executed by the defendants, and made payable to William Wear, and by him assigned to the plaintiff, Austin.
The defendants pleaded jointly nil debit; J. H. Graves and Robert Graves pleaded, by way of set-off, that William Wear, the assignor of the plaintiff, was, before and at the commencement of the suit, indebted to J. H. Graves, one of the defendants, by note, in the sum of seventy-five dollars; and that the said William Wear was indebted to Robert Graves, another of the said defendants, in the sum of one hundred and seventy-seven dollars, to be paid in notes and accounts. To this plea the plaintiff demurred, and the court overruled the demurrer, and thereupon the parties went to trial, and the jury, to use their own language, found as in case of a non-suit. A motion for a new trial was made by the plaintiff and overruled, and he has brought his case here by writ of error.
It is contended by the plaintiff, that the defendants could not plead separately; that this being an action ex contractu, all the defendants should join in a plea in
It was next objected, that the demurrer to the plea of set-off should have been sustained, because it was not averred in the plea; that the debt mentioned in it was due at the time of the assignment of the note. We do not see the ground on which this objection is based. There is no doubt of the general principle that a set-off should be due and owing to the party by whom it is plead at the commencement of the action. (Chitty’s Plead., 604.) Our statute prescribes, that the nature of the defence of the obligor, or maker, shall not be changed by the assignment, but he may make the same defence against the bond or note in the hands of the assignee that he might have made against the assignor, and that the obligor, or maker, shall be allowed every just set-off and discount against the assignor before the assignment. This was debitum in .presentí solvendum in futuro. Whether it could be used as a set-off would depend on the plaintiff; if he brought his action against the maker or his assignee before it was due, it is clear it could not have been used as a set-off; but delaying his action until it was due, the defendant’s right to employ it as a set-off was unquestionable.
Another point in the cause is, that one of the debts pleaded as a set-off was payable in notes or accounts, and therefore could not be used as a set-off. It is a general rule that where indebitatus assumpsit will lie on a simple contract, the debt due by such contract may be plead as a set-off. A set-off is never admitted in actions ex contractu, if the claim be for uncertain unliquidated damages. (Chitty, 604.) In the ease of Colson vs. Welsh, Esp. Nisi Prius, Lord Kenyon held the statute of set-off applied only to mutual debts; that when the plaintiff’s demand was on a special agreement a set-off was never allowed, although it might be when the plaintiff had recourse to the money counts. Debts may be set-off where indebitatus assumpsit will lie. (Coup., 56; 6 Tenn., 488; 2 Burr, 1024.) An action of debt would lie for goods and chattels by the common law. (Wherewood vs. Shaw, Selverton, 25.) In the case of the Earl of Falmouth vs. Penrose, 13 Eng. Com. Rep., 205, it was held, thát indebitatus assumpsit would lie for goods and chattels. In that case, the declaration alleged that the defendants were indebted to the plaintiff in divers, to wit, one hundred fish of the value of £10. Our statute gives an action by petition in debt, on notes for the payment of money or property. If, then, debt, or indebitatus assumpsit, would lie on the note set out in the defendants’ plea, it would follow, therefore, that it could be used as a set-off. — See 7 Weir, 311.
There were some irregularities in the progress of this cause in the court below, but they were of such a character as not to effect its merits, and of which the plaintiff cannot complain. When the demurrer to the plea of set-off was overruled, the court should have entered final judgment on the demurrer, as the plaintiff did not ask. leave to withdraw it, and take issue on the plea. The plea of set-off standing admitted on the record, was a bar to the plaintiff’s action, and there was no necessity for a trial of the issue on the plea of nil debit. As to the permission given by the court to the defendants, to mend their plea, we cannot see how the plaintiff was injuriously affected by it. It was a matter of form, and such amendments, in affirmance of judgments, may be made at any time.
Judgment affirmed.