132 F. 450 | 8th Cir. | 1904
This is an action brought by William E. Brown, the plaintiff in error, against the First National Bank of Newton, Kan., to recover $7,500 alleged damages for the wrongful release of a judgment which Brown had pledged to the bank as collateral security for the payment to it of a note for $3,366.75, made by Brown as principal and Cora E. Brown and T. J. Norton as sureties. The court below instructed the jury to return a verdict for the defendant because in an action on the note, which had been brought by the bank, Brown had recouped or set off so much of the damages which were caused by the release as were necessary to pay and defeat the claim upon the note. The writ of error challenges the judgment upon the verdict rendered pursuant to this instruction.
In the action upon the note for $3,366.75 Brown and his sureties pleaded, and introduced evidence in support of, other defenses besides that based upon the release of the pledged judgment, so that, although the record in the case before us establishes the fact that there was evidence that the jury applied a portion of Brown’s claim for damages on account of that release in payment of the note, it fails to disclose what portion of that claim was thus applied. In this state of the record the charge of the court below was based upon the rule of law that one may not split his cause of action; that if, by an action or defense he avails himself of a part of a single claim or obligation, he thereby estops himself from enforcing the remainder of it; and that, as Chief Justice Shaw felicitously expresses it, “he cannot use the same defense first as a shield and then as a sword.” O’Connor v. Varney, 10 Gray, 231; Britton v. Turner, 6 N. H. 481, 495, 26 Am. Dec. 713; Batterman v. Pierce, 3 Hill, 171; Machine Co. v. Farmer, 27 Minn. 428,430, 8 N. W. 141; Bólen Coal Co. v. Brick Co., 52 Kan. 747, 749, 35 Pac. 810; Lucas v. Le Compte, 42 Ill. 303, 305; Sutherland on Damages, §§ 186, 187, 189; Freeman on Judgments, §§ 277, 224; 2 Van Fleet’s Former Adjudication, p. 867; Desha’s Ex’rs v. Robinson, 17 Ark. 245.
The plaintiff does not dispute this general rule of practice, but he insists that his case is not governed by it, because the release of the judgment constitutes a payment of the note,- and he was compelled to present that release as a defense to the action upon the note, or to entirely lose all benefit of it. But was the plaintiff required to -set up his claim for damages from the release of the judgment as a defense to
In support of his contention that the use of a portion of his demand for damages for the waste of collateral security in support of the defense of payment to the action upon the note does not bar his subsequent action for the remainder of his damages, the plaintiff cites Gardner v. Buckbee, 3 Cow. 120, 127, 15 Am. Dec. 256, Wells, Res Ad judicata and Stare Decisis, § 210, and Clark v. Sammons, 12 Iowa, 368. A careful perusal of these authorities, however, convinces that they do not rule the question here under consideration. They hold only that, where several promissory notes are given for the purchase price of personal property sold with a warranty of character, and the quality of the property is such that the consideration of the notes fails and the warranty is broken, the defeat of an action upon one of the notes by the interposition of the defense of a failure of consideration is
Again, while the general rule was that, where there are several defendants, claims to be set off against that of the plaintiffs must be in favor of all the defendants and against all the plaintiffs (Hilliard v. Walker, 11 Ill. 644; Coates v. Preston, 105 Ill. 470), there was an acknowledged exception to that rule to the effect that in an action against a principal and his sureties the latter might set off a claim of their principal, in which they had no interest, against the claim of the plaintiffs, not for the purpose of recovering an affirmative judgment against them, but to defend against and defeat their claim to a
The judgment below is affirmed.