78 Md. 454 | Md. | 1894
delivered the opinion of the Court.
The appellees sued the appellant, a corporation in this State, in an action of debt, as surety on a replevin hond. The following facts arise on the pleadings: On the 1st of December, 1889, the Bolton Mines Company, of Baltimore City, sold a certain lot of fertilizers or phosphates to the Waring Manufacturing Company, of Cecil County, Mainland. The goods were delivered, and a note dated, the 15th of March, 1890, was executed and delivered for the contract price. Afterwards, on the
This contention can be disposed of by a single reference.
In the case of Stiefel and Cohen vs. Barton, Garnishee, 73 Md., 411, we passed upon the identical question, and in construing the 205th section of Article 16 of the Code, which provides “that every trustee to whom any estate, real, personal or mixed shall be conveyed for the benefit of creditors,” * * * there said, that “a deed conveying real property for the benefit of creditors must bo recorded in the county or counties, or in the City of Baltimore, in which the land lies; and, if it conveys personal property, it must be recorded in the county or city in which the grantor resides.”
We said also that, as the property in dispute in Barton’s Case was personal property, the deed ought to have
The subsequent recording of the deed and filing of the bond, in Baltimore City, was manifestly for the purpose of passing title to the real estate, and could in nowise affect the title to the personal estate.
The demurrer therefore to the defendant’s third plea, which raised this question was properly sustained. Wilson vs. Carson, 12 Md., 77; Stiefel and Cohen vs. Barton, Garnishee, 73 Md., 411.
We come now to the second question in the case,— that is, the appellant’s claim to recoup or set-off against the plaintiff’s demand the amount of the note made by their assignor, which demand arose out of matters altogether subsequent thereto. It is well settled that recoupment is a species of common law set-off for damages due the defendant growing out of the same transaction, and is allowed in this State in actions both ex contractu and ex delicto, in order to avoid circuity and multiplicity of actions. Baltimore Marine Insurance Co. vs. Dalrymple, 25 Md., 309; Dowler vs. Cushwa, 27 Md., 367; Warfield vs. Booth, 33 Md., 63.
The reason of this is, that the assignee, in virtue of the assignment, becomes a trustee for the creditors. The status of the assignors, debtors and creditors is fixed by the assignment in trust for the creditors.
The case of Seldner vs. Smith, 40 Md., 602, relied on by the appellant is entirely distinguishable from this case. The principle recognized and applied in that case was that a replevin bond being one of indemnity only, a surety on said bond is entitled to be subrogated to the right of his principal and to avail himself of the same defences which were open to him. In Seldner’s Case the plaintiff was the party to whom the goods had been sold, and the title had not passed to a third party as in this case, to an assignee for the benefit of creditors. The claims were mutual, and arose out of the same transaction; whereas in the case at bar, the liability on the bond arises out of transactions subsequent to the assignment, and for a claim also subsequent thereto.
In Thompson vs. Whitmarsh, 100 N. Y., 35, it was held that upon new contracts made by an executor or administrator, and never existing in favor of the decedent, but growing out of the dealing of the former alone, a debt against the decedent cannot be made the subject of a counter claim.
And the same rule has been established by this Court in the cases of Scott vs. Scott, 17 Md., 78, and Schwallenberg vs. Jennings, 48 Md., 554. To sustain the contention of the appellant would destroy the principle of equality among creditors in the settlement of insolvent
For the reasons we have stated the demurrers to the pleas were properly sustained.
The plaintiffs’ first prayer fairly submitted to the jury the finding of every fact essential to their right to recover, and was properly granted.
The second prayer relates to the measure of damages, and was correct.
The third prayer was conceded.
The defendant’s first prayer, relating to the recoupment and set-off, was properly rejected for the reasons we have heretofore given.
The third prayer, in reference to the measure of damages, was fully covered by the plaintiffs’ second prayer, which was correct.
The rulings of the Court below will therefore be affirmed.
Judgment affirmed.