44 Ky. 376 | Ky. Ct. App. | 1845
delivered the opinion of the Court.
In this action brought by Dunn against West and Hackley, on their joint and several bond for $680, a separate claim of West against Dunn, amounting to §437, was, by the induction of the Court, allowed to be set off, and was, by the verdict and judgment, credited on the plaintiff’s demand. It is contended here as it was in the Circuit Court, that there could be no set off of these demands : 1st. Because the demand of the plaintiff was joint, and the demand against him separate; and 2d. Because the claim of West is founded on the verbal promise
1st. Our statute does not, like that of England, use the phrase “mutual debts between the plaintiff and defendant,” in describing the demands that maybe set off against each other in an action, but says, “it shall be lawful for the defendant on the trial, if the plaintiff be indebted to him, to plead the same,” &c. (Stat. Law¡, 1448.) We might not, therefore, feel bound to give precisely the same effect to our statute that had been given to the English statutes, before the enactment of ours ; and although we are not disposed to question the propriety under our statute, of the general rule which had been deduced from the English statute, that the debts to be set off must be in the same right,-and that a joint debt cannot be set off against a separate demand, nor a separate debt against a joint one, we are at liberty, and indeed bound so to expound the rule itself as not to impair the beneficial operation of the statute. The statute intended, in the first place, to confer a privilege on defen* dants, by enabling them to use defensively such demands as at their election might be justly applicable to the satisfaction of the plaintiff’s claim, and which could obviously be so applied, without involving any possible injury to other parties. It also intended to prevent the necessity of cross actions, where there were demands on each side of the suit, which at the mere will of the parties to either demand, might be set off against each other without affecting the interests of the others not under their control. And it was intended to induce the voluntary settlement of such mutual demands, and thus to discourage unnecessary litigation, by giving to the party sued the right to coerce as a defendant, a discount which his debt- or might and ought, upon application, to have allowed before suit.
Now the debt sued for here is due to the plaintiff separately, and the debt offered to be set off against it is due from him separately. So far as the plaintiff is coqcem
If we stick to the letter of the statute, there can be no set off but between a single plaintiff and a single defendant, and the debt allowed to be set off must be from the plaintiff in the suit to the defendant. But it has been decided not only that a plaintiff may reply to a plea setting off a debt from him to the defendant, that the suit was brought for the benefit of a third person, but also that the defendant may plead by way of set off, that the suit was brought for the use of a third person, who is indebted to him; Carlisle vs Long, (1 A. K. Marshall, 487;) Ward vs Martin, (3 Monroe, 19;) Cummings’ administrator vs Williams’ heirs, (5 J. J. Marshall, 385;) and it is immaterial that the third person was not even named
Upon the principle of the cases just referred to, it could not be doubted that in case of several plaintiffs sueing jointly, a plea averring that one of them was beneficially entitled to the whole demand, and offering to set off a debt from that one to the defendant, would be good, and it would seem equally clear that in an action against several, they might plead that one alone was the real debt- or, and set off a debt due from the plaintiff or plaintiffs to that one. For if for the purpose of doing substantial justice, a Court of Law may regard one of several plaintiffs, who is entitled to the whole demand, or even a strangerto the record who is thus entitled, as the plaintiff, whose debt to the defendant may be pleaded as a set off, so it may discriminate among several defendants and regard the real debtor among them, as the defendant, whose demand against the plaintiff is allowed to be set off against the action. But a slight consideration of the subject will show, that there is a substantial difference between the case of offering to set off a demand due to the defendant or defendants from one of several plaintiffs, and that of offering to set off a demand due from the plaintiff or plaintiffs to one of several defendants. Supposing the plaintiffs to be all beneficially interested in the demand sued on, it is wholly immaterial, in view of their
But independently of this view of the subject, which makes it immaterial whether the debt of the plaintiff which is offered to be set off against his demand belongs to one or all of the defendants, and also, whether the defendants are bound to the plaintiff as joint and several obligors, or as joint obligors only, it is to be observed that in this case their obligation is by the contract, several as well as joint; and we do not admit that the obligee is entitled to appropriate to himself all the advantages of this double character of the obligation, and by electing to sue both obligors jointly, to deprive them of any right, which by the nature of the contract, belongs to them. If then it were true that two joint obligors could not setoff the plaintiff’s debt to one of them, it would not follow necessarily, that joint and several obligors must, because they are sued jointly, be also precluded from that privilege. Either would have the right before suit, or in a separate suit against him, and at his own mere will, to require that the plaintiff’s debt to him should be set off against the joint and several obligation. Unquestionably such an offer made before suit, could’not be rightfully refused because the creditor had the right to sue both, and for this purpose to treat the obligation as a joint one. And as his election to sue on the obligation as a joint one, does not change its essential character, we think it does not deprive the obligors of any of their separate rights growing out of the nature of the contract.
We are, therefore, of opinion, for reasons already sufficiently indicated, that if as mere joint obligors, the defendants could not avail themselves of the separate demand of one of them against the plaintiff as a set off against his demand upon them jointly, yet being several as well as joint obligors, they are entitled to make thesetoff, if the demand of West against the plaintiff, would be available as between them alone.
2d. We come, therefore, to the consideration of the second objection made to the allowance of the setoff, for the proper understanding of which, it is necessary to state the nature and grounds of the claim of West upon
The usual test applied in ordinary cases for determining whether the promise in question is within the statute, is found in the enquiry whether the promise is a collateral or original one, and-whether the credit was given exclusively to the promisor, or whether another person was credited for whom the promisor is collaterally bound. The Court instructed the jury that the set off could not be allowed unless they believed from the evidence, that West executed the notes upon the sole credit of the plaintiff; and as the jury found that he did so execute them, the usual test would seem to have been fully applied in this case. It is contended, however, that the principal in the note was necessarily bound to remunerate West upon his making payment; and therefore, that the engagement of the plaintiff to make the same remuneration, is a promise to pay the debt of his son, and essentially a collateral undertaking. But whether West who became bound upon the sole credit of the plaintiff, could upon payment of the debt, have resorted to the principal, whose debt it was, is itself a question not determined; and although we are inclined to the opinion that even under such circumstances the law would imply an assumpsit on the part of the principal to repay West, who, as his surety in fact had, with his consent, paid his debt for
Upon the authority of these cases, therefore, and because there was no debt from the plaintiff’s son to West, which the plaintiff promised to pay in default of payment by his son, but the promise was to pay to West what he should have to pay if he would become surety for the son, we are of opinion that the statute of frauds does not
Wherefore, the judgment is affirmed.