33 Ill. 464 | Ill. | 1864
delivered the opinion of the Court':
This was a bill in chancery for contribution and a set-off. The parties were partners sharing profits and losses equally in the manufacture and sale of furniture for one year, ending November 22, 1860, when the copartnership was dissolved, and the plaintiff in error bought the interest of the defendant in error in certain furniture belonging to the firm, and gave his notes therefor; a part of which were paid, but upon the remainder there was due at the commencement of the suit about two hundred dollars. At the time of said dissolution, the firm was indebted to Roundy, Chabin & Co., in the sum of about four hundred dollars, upon which indebtedness a judgment was rendered in April, 1861. An execution was afterwards issued thereon and satisfied by a sale ere masse of certain lands belonging to the parties severally. On the 1st day of January, 1862, the plaintiff in error redeemed from the sale by paying to the purchaser the amount of his bid with interest, for which he gave a receipt upon the back of the certificate of sale which he delivered to the plaintiff in error. In the spring of 1863, the parties had a settlement of all their copartnership matters except the claim of the plaintiff in error to be repaid one-half of the amount paid by him to redeem said lands, and the balance due upon said notes. The plaintiff in error by the present suit seeks contribution for a moiety of the sum paid by him, and a set-off of the same against the amount due upon his notes. The liability of the parties to Roundy, Chabin & Go., was a joint one, and it was the duty of each party to exonerate the other from a moiety of it. No act falling short of a complete exoneration of the one party and his property from so much of the liability as he was entitled to be exonerated from, will operate as a discharge of the other party from his obligation in that regard. The sale ere masse of the lands of the defendant in error with those of the plaintiff in error did not discharge any part of the property sold, nor the parties from their respective duties. Neither party could obtain a discharge of his property without paying the whole amount of the purchase-money and interest, and each of them had the same right after the sale, within the time allowed by law to redeem the lands for that purpose, as he had before that time to pay the debt to discharge himself from personal liability. The sale may have been irregular, and for that reason might have been set aside, but setting aside the sale would have revived the debt, and we are unable to discover any satisfactory reason for requiring the plaintiff in error to make the charge upon his property a personal debt against the defendant in error and himself, before satisfying it. The law does not require acts to be done, where there is no conceivable object to be gained by doing them. In the present case, the right to contribution is founded upon the duty of exoneration. The plaintiff in error has been compelled to pay money to exonerate his property from a liability; a moiety of which he ought to have been exonerated from by the defendant in error. The lands were discharged from the sale by the purchasers accepting the redemption money. The statute providing a mode of evidencing the redemption, may be enforced by an appropriate remedy, but a compliance with its provisions is not a condition precedent to the assertion of the right of plaintiff in error to contribution. The court below should have rendered a decree in favor of the plaintiff in error for the one-half of the sums paid by him, with interest thereon from the time of its payment. The plaintiff in error was not entitled to the set-off claimed by the bill. There was no proof of the insolvency of the defendant in error, nor of any special equity requiring the set-off to be made. The demands were not necessarily connected with each other; that of the plaintiff in error arose out of the contract of partnership ; that of the defendant in error from the sale of certain furniture, and there was no understanding between the parties that the one demand should be set off against the other. They were mere cross-demands. The obligation of the plaintiff in error was to pay his notes when they became due, without reference to the affairs of the partnership, and there is no equity shown for blending the two matters together, contrary to the agreement of the parties. The demand of the plaintiff in error was a legal one, and might have been set off at law, in action upon the notes. (Coll, on Part. § 288). It is well settled that courts of equity will not set off mere cross-demands. Ranson v. Samuel, 1 Craig and Phil. 161.
The decree of the court below will be reversed and the cause remanded.
Decree reversed.
