| Wis. | Jan 15, 1867
The counsel for the defendant assumes that the matters stated in the answer show that the check sued upon was without consideration. In view of the facts there set up, it can hardly be successfully maintained that no consideration in law was received for the check. The account against Mrs. Rice was liquidated by the acceptance of the defendant’s note. It is so stated in the answer. Suppose the defendant was acting as the agent of his wife; yet if he saw fit to give his individual note for the satisfaction of a debt of his principal, or for a forbearance of that debt, a sufficient consideration is shown for his promise. After the plaintiff had accepted the defendant’s note, payable in sixty days, in liquidation of an account, payable presently against Mrs. Rice, it is very clear that at least he could not bring suit upon the account until the credit had expired, even if he had not lost his action upon it altogether. But perhaps the better and more obvious meaning of the answer is, that the defendant’s note was given and received in satisfaction and discharge of the'account against Mrs. Rice. It is said that the word “liquidate,” as here used, only implies that the amount of that account was ascertained and determined. But the amount of the account was definitely fixed at $100, before the note was given. And, moreover, under the circumstances detailed in the answer, the giving of the note in liquidation of the account was a perfectly meaningless and idle act, if it was only intended thereby to ascertain and reduce to precision the amount of that account. The note must have been given in consideration of the discharge of that account, or at all events in consideration of forbearance for a particular
Again, can the defendant avail himself, by way of counterclaim or set-off, of the other matters stated in his defense? It is alleged that before and at the time of the commencement of the action, the plaintiff was and still is indebted to Dorcas S. Rice in the. sum of $345, for wheat, wood and straw belonging to her, which had been converted and disposed of by the plaintiff to his own use; and also for money received by him for pasturing cattle upon the farm leased of her. The account, it will be seen, is one in favor of Dorcas S. Rice, and not one in favor of the defendant He is sued upon his own check, and he seeks to extinguish the debt by setting up a matter which should properly be the subject of an action between the plaintiff and Mrs. Rice. It is in no sense of the word a counter-claim or set-off; and to allow him to set it up in extinguishment of his individual obligation would be a violation of well established legal principles. Whether, if he had averred in the answer, in addition to the matters there stated, that the plaintiff was insolvent, unable to respond in damages in an action brought by his wife on her claim, it would have furnished any ground for equitable relief, is not a question raised by the pleadings, and need not be decided. Even in that case, it would seem that Mrs. Rice should be before the court in order to litigate her claim. As the answer now stands, we think it sets up no defense to the action.
By the Court. — The judgment of the circuit court is affirmed.