Barber v. Baker

70 Mo. App. 680 | Mo. Ct. App. | 1897

Ellison, J.

Plaintiff instituted this action against defendants on a nonnegotiable promissory note executed by defendant to one Eanson, and by Eanson assigned to plaintiff. Plaintiff recovered in the trial court.

Statement The single question involved is the right to set off a judgment in favor of defendant and against plaintiff. The trial court ruled that the judgment could not be set off. The statute (section 8161) is as follows: “In actions on assigned accounts and nonnegotiable instruments the defendant shall be allowed every just set-off on other defense which existed in his favor at the time of his being notified of such assignment.”

Sgot°aWen°otef" account: jud¿-

The facts necessary to understand the point for decision are few and simple. Before Eanson assigned the note to plaintiff and before defendant was notified of the assignment, Ranson had become 'indebted to defendant on an account. Defendant sued him on this account, and while that suit was pending plaintiff instituted this action against defendant. Defendant obtained judgment against Ranson before the present action came on for trial, and he pleaded such judgment as a set-off, which, as before stated, the court disallowed. It is clear that defendant could have set-off the amount of his claim against Ranson if he had not reduced it to judgment. For plaintiff’s action being on a nonnegotiable instrument, and defendant having a claim against plaintiff’s assignor a^. ^ yme iearne(j 0f £he assignment to plaintiff, he would have been placed within the terms of the statute.

But when he obtained the judgment on the account it was merged in the judgment and the judgment became the sole and only debt owing to defendant. And since it was not obtained by defendant until after plaintiff brought this action, it did not “exist in his favor at the time he was notified of the assignment” to plaintiff. It is, therefore, not within the statute.

Neither would the account be within the statute. For, notwithstanding it existed in defendant’s favor when he first learned of the assignment of the note in controversy to plaintiff, yet by putting it in judgment he put it out of existénce. It was no longer a subsisting claim and could not be again sued upon; for it is well settled that you cannot vex a debtor by repeated suits upon claims already in judgment, the remedy being a suit on the judgment. If, therefore, a debt which has been reduced to judgment could be utilized as a set-off, we would have the anomoly of a recovery on a claim by way of set-off which could not be sued on directly. It is well settled that this can not be done. A defendant offering a set-off occupies, substantially, the position of a plaintiff, and must have a subsisting demand which would afford the subject-matter for a cause of action.

The ruling made by the trial court, and which we affirm, is supported by 2 Black on Judgments, section 673; Waterman, Set-off, section 75; Andrews v. Varrell, 46 N. H. 17; Lowell v. Lane, 33 Barb. 292; Mizell v. Moore, 7 Ired. 255; Irvin v. Wright, 2 Ill. 135.

We know of no relief for defendant unless he adopts the suggestion of the court in the first of the foregoing cases and procures, in some proper way, a set-off of judgments.

Affirmed. All concur.