5 Ark. 672 | Ark. | 1844
By the court,
This is a suit of garnishment and depends upon a proper construction to be put upon the defendants answer. The defendant states that he purchased by covenant from one John W. Johnston, sixty shares of stock in the Real Estate Bank, for the sum of $900, which was to be transferred free from incumbrance, so soon as the central board made out the forms of transfer; that these forms were never regularly made out or fixed by the central board, nor did Johnston ever convey to him agreeably to his covenant, the amount of stock designated, but that he transferred fifty shares in an irregular manner, which was accepted by the defendant, and for which he was to give him $750 in Arkansas paper. The answer then alleges, that Johnston is owing him for his securitysbip, large amounts, which appear of record, and that Johnston and this defendant’s co-securities are insolvent, and the defendant seeks to set off his indebtedness against the demand of fifty shares of stock, and alleges that there has been' $100 or $150, paid upon the purchase of said stock, for which the defendant is entitled to a credit. The covenant of the agreement between Johnston and the defendant is made part of the answer, and by that exhibit it is manifest that in a court of law the defendant cannot introduce parol testimony, to alter or vary the terms of the written agreement. It is a contract for the purchase of so much stock for so many dollars, and it is not competent in a court of law, to show that the agreement was for so much Arkansas paper, whatever he might do in a court of equity, by alleging and proving that fact, or Johnston’s admitting it to be true. The defendant has no right to set ofí his demands against Johnston for securityship in this form of action. The authorities upon this point are clear. The demands are not between the same parties, nor are they mutual subsisting rights. How far the defendant may be able to avail himself of this defence in a court of equity, by proving the insolvency of Johnston and his co-securities, is a question not now before us, and, of course, upon which we express no opinion. It is perfectly manifest, that the judgment in this instance, is erroneous, and must be reversed, for it does not give the defendant his just credits, to which he was clearly entitled by his answer. Judgment reversed.
