44 Minn. 61 | Minn. | 1890
The action is upon defendant’s written guaranty of payment of any indebtedness arising from samples sent one J. L. Barry by plaintiff for the purpose of taking orders for plaintiff by Barry, the condition of the guaranty, as expressed in the writing, being “that said Barry is to account, as per invoice, for all samples received from said Becker.” The complaint alleges the delivery by plaintiff to Barry, on the faith of the guaranty, of samples to the value of $450.62, and the failure of Barry to account for them, and asks judgment for such value. The defendant answered, setting up as a first defence that, on a date specified, Barry executed to plain, tiff his promissory note for $650, and a mortgage on real estate to secure it, and delivered them to plaintiff, under an agreement by which plaintiff was to negotiate and sell the same at their face value, and pay the proceeds to Barry, but, instead of doing so, he foreclosed the mortgage, bid in the property at the sale, — it then being worth
As between plaintiff and defendant, the claims set forth in the answer were not legal counterclaims, because they were not causes of action in favor of defendant. The commissions earned by Barry would be a defence pro tanto to the cause of action alleged in the complaint, just as partial payment by Barry would be; for, those commissions being earned, manifestly, in the use of the samples and the business and purpose for which they were furnished, they were proper items to be allovred in accounting for the samples. The matter of the note and mortgage, conceding that Barry might elect to treat it as a claim founded on contract, would not be a legal defence, but, if sustained at all, must be sustained as an equity in favor of defendant, within the meaning of Gen. St. 1878, c. 66, § 96, subd. 3. The test of such equity was stated by this court as early as Gates v. Smith, 2 Minn. 21, (30.) “The test of the sufficiency of any particular defence, equitable in its nature, must be whether, had the same facts been presented by a bill in chancery, would that court have entertained the case, and granted the relief sought here?” This was approved and applied in Barker v. Walbridge, 14 Minn. 351, (469;) Birdsall v. Fischer, 17 Minn. 76, (100;) Williams v. Murphy, 21 Minn. 534. Could the defendant have maintained an equitable action to enforce, for his protection, the set-off of the claims in favor
We do not mean to intimate that the surety, when sued alone, may in that action have the set-off; for a court will, if possible, avoid the
The objection that the proper parties are not before the court does not exist in this case if Barry, the principal debtor, had a right to intervene in the action. That he might intervene for the purpose of defeating a recovery by plaintiff, we cannot see there is any doubt. The statute (Gen. St. 1878, c. 66, § 131) allows “any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against either or both,” to intervene, and either prosecute or defend. Taking the construction put upon this in Bennett v. Whitcomb, 25 Minn. 148, and Lewis v. Harwood, 28 Minn. 428, (10 N. W. Rep. 586,) that the interest must be of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment, this case comes directly within it. If, in the action as originally brought, judgment had gone against the defendant, and had been enforced against him, the intervenor might have to reimburse him; but, had it discharged the defendant of liability to the creditor, it would have terminated the intervenor’s obligation as indemnitor. Indeed, we can hardly conceive a case more within the spirit and intent of the statute than one in which the intervenor stands in the relation of indemnitor to one of the parties.
As to the first matter of defence in the answer, and set-off in the intervenor’s complaint, to wit, in relation to the note and mortgage, it is, so far as any question is presented by the demurrers, (the question of the rule of damages not being involved,) very clear. A contract and a breach of the contract are alleged. If there is also a tort alleged, that does not prevent a recovery for the breach of contract. It may make a case where there must be an election between proceeding for the breach of contract and for the tort. If so, the election is made by using it as a cause of action arising on contract may be, and one arising upon tort may not be, used, to wit, as a set-off.
Orders affirmed.