15 Vt. 258 | Vt. | 1843
The opinion of the court was delivered by
This case has come before us by an appeal from' a decree of the chancellor of the third judicial circuit, and we are called upon to revise his proceedings. In February, 1836, the oratrix was indebted to Ketchum & Shaw, in about the sum of four hundred dollars, and gave them her note payable to their order on demand. The note has been prosecuted to final judgment, and the object of this bill is to procure a set-off of a claim which the oratrix has
But the important question arises on the cross bill of Alien Ketchum, who claims to come in as the assignee of Joseph C. Ketchum. Has he an equal, or a superior equity to the oratrix, which will enable him to defeat the set-off? There seems, from the testimony, to be some uncertainty as to the manner, the object, and conditions, upon which the note of Mrs. Foot went into the possession of Allen Ketchum. It was not included with the other demands in the written assignment of Joseph C. Ketchum. It is not endorsed; neither is its transfer evidenced by any note or memorandum in writing. If Joseph C. Ketchum, as it is claimed, on the eve of his leaving the state, passed the note over to Mr. Drury for the benefit of the orator in the cross bill, yet it was to indemnify him against liabilities which he had previously incurred, and not upon any new consideration advanced at the time. It was long after the note had ceased to be current, and in violation of all good faith between Joseph C.
It is a well settled doctrine that the assignee of a chose in action takes it, subject to all the equity existing at the time, in the original obligor or debtor. Turton v. Benson, 1 Peere Wms. 496; Coles v. Jones, 2 Vernon, 692; Murry v. Lylburn, 2 Johns. Chan. 442; Norton v. Rose, 2 Wash. R. 233, 254. Though the note was negotiable, yet, as it was not negotiated, and passed after it ceased to be current, the law merchant, as applicable to commercial paper, cannot aid the orator in the cross bill. All the claims of Mrs. Foot against Joseph C. Ketchum accrued before he parted with the note. When she consented to give the note, running to Ketchum & Shaw, she was assured the note was to become the private property of Ketchum ; that any claims which she might have against Ketchum might be brought in in payment of it; and, after the settlement between Ketch-um & Shaw, by which this note became the pi-operty of the former, and while he was renting the store of Mrs. Foot, and was the owner and holder of this note, there was an express agreement between them, that her claims should be set-off on the note, and that the balance, if any, should be paid out of the sale of her house, which Ketchum, at that time, contemplated buying. But the house was not sold ; and Ketchum rented the same up to the time he left the country. In addition to this, Ketchum is insolvent. Here, then, wo think there is an equity in Mrs. Foot to have the set-off made, superior to any which attaches to Allen Ketchum, and of which she ought not to be defeated by force of the assignment.
It has been said, in argument, that while the note was in the hands of Allen Ketchum, Mrs. Foot promised to pay it; and that she has thus precluded herself from the set-off. But from all the testimony in the case, and the circumstances attending the transaction, the fact of such promise being understandingly made rests in doubt. If such promise was made, it most probably had relation to the payment of such balance as, in the end, might be found due. It is evident
Before a set-off can be made, it is necessary that the account should have been liquidated by a master, or by some other means. In the present case, Allen Ketchum, claiming to be the assignee of the note, commenced his action on the note, and, as matter of defence, Mrs. Foot filed her declaration on book against Joseph C. Ketchum, in off-set. The counsel for Allen Ketchum, who appear upon the record for Ketchum & Shaw, appeared, and submitted, in the declaration on book, to a judgment to account, and the matter went to auditors. The counsel for Allen Ketchum appeared before the auditors with the private account of Joseph C.
Ketchum; and there was a full, and, for aught that appears, an impartial trial; and the allegation that the account allowed by the auditors was unjust and fraudulent is without evidence to support it. All the evidence relative to the accounts now before us was, or might have been, before the auditors. Mr. Drury might as well have been examined as a witness then as now, and, for aught that appears, was examined. The auditors were competent men, whose impartiality and integrity is not to be questioned. The claims of Mrs. Foot were defended against by the same counsel' who now appear to contest them, and who then had the same means of knowledge relative to them which they now have.
In regard to the account of Mrs. Foot, which accrued be
The decree of the chancellor should be affirmed, with additional costs, and the cause is remitted to the court of chancery, to be proceeded with accordingly.