Fowler & Co. v. Bellinger

| Ala. | Nov 15, 1903

DOWDELL, J.

The appeal in this case is prosecuted from the decree of the city court dismissing the bill on motion for want of equity. The bill in substance averred that in December, 1890, Bellinger Brothers, a firm composed of W. C. and J. M. Bellinger, became indebted to appellants in the sum' of $577.75, and tbat in Jnly, 1891, W. Fowler, one of the .partners of tbe firm of Fowler & Co., which said firm was composed of W. Fowler and W. P. Lay, forgetting for the time being, that Bellinger Brothers owed W. Fowler & Co., executed a bond in the firm name of Fowler & Co., to Bellinger Brothers for $518.00. That after the statute of limitations had perfected a bar against an independent action by appellants on their said demand, W. C. Bellin-ger, as surviving partner of Bellinger Brothers, brought suit against W. P. Lay individually in the city court of Gadsden, and in which suit the demand of appellants against Bellinger Brothers could not in law be availed as a set off.—Drennen v. Gilmore, 132 Ala. 246" court="Ala." date_filed="1901-12-20" href="https://app.midpage.ai/document/drennen-v-gilmore-bros-6519346?utm_source=webapp" opinion_id="6519346">132 Ala. 246. The bill shows that the claim of Fowler & Co., was a subsisting demand at the time the right of action accrued on the claim or demand of Bellinger Brothers against Fowler & Co. While the statute of limitations at the time of the institution of the suit at law by W. C. Bel-linger against Lay on the bond, had completed the bar against the demand of Fowler & Co., in an independent action by Fowler & Co., on said demand, yet under the statute the demand being a subsisting one, when the right of action accrued to Bellinger Brothers on their demand against Fowler & Co., the statute of limitations did not run against it as a mutual demand and it was available as a set off in a suit by Bellinger Brothers against Fowler & Co.- — See § 3728 of the Code of 1896.

It is, therefore, plainly to be seen that if Bellinger Brothers, had instituted suit on the bond against Fowler & Co., the latter could have made available their claim as a set-off in such suit under the statute, although the statute of limitations had completed a bar as to such claim in an independent suit on the same. The complainants’ equity rests in the fact that they have the right to set off their claim against the demand of Bellinger Brothers, and they have been defeated in this right by the action taken by W. C. Bellinger, and are without any remedy at law, and unless aided by a court of equity, will be deprived of the right to set off tbeir said claim. Tbe principle is tbe same as in tbe case of tbe insolvency of tbe party against whom a set-off is sought to be availed of.

In tbe suit before ns tbe respondent bas sued Lay, one of tbe two persons composing tbe partnership of Fowler & Co., upon the bond of Fowler & Co., which is a several and joint obligation. In tbe event of a recovery against Lay in such snit, Lay would have tbe right of contribution in equity against Fowler, the other member of tbe firm, and in this way Fowler & Co. would be made to pay tbe demand of Bellinger Brothers and yet be denied the right to use tbeir demand as a set off against Bellinger Brothers unless a court of equity will give the relief, since it cannot be had at law. The jurisdiction in such cases is recognized by elementary writers on the subject of equity jurisdiction, as well as in tbe decisions of tbe courts.—1 Pomeroy’s Equity Jurisprudence, §1437 and 1437a; 2 High on Injunctions, (3d ed.) §§ 92, 243: Waterman on Set-Offs, §276; Hibert v. Lang, (Pa.) 30 A. 1004" court="Pa." date_filed="1895-01-07" href="https://app.midpage.ai/document/hibert-v-lang-6242662?utm_source=webapp" opinion_id="6242662">30 Atl. 1004; Henderson v. Lewis, 9 Serg. & R. 379; Brewer v. Norcross, 17 N. J. Eq. 226. This doctrine is recognized in Farris & McCurdy v. Houston, 78 Ala. 257. See also Wood v. Steele, 65 Ala. 439" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/giddens-v-williamson-6510648?utm_source=webapp" opinion_id="6510648">65 Ala. 439; Carroll v. Malone, 28 Ala. 521" court="Ala." date_filed="1856-01-15" href="https://app.midpage.ai/document/carroll-v-malone-6505751?utm_source=webapp" opinion_id="6505751">28 Ala. 521. In tbe last case, insolvency was not averred and hence not relied on to support tbe jurisdiction of tbe court.

Our conclusion is that the bill here contained equity, and the court erred in dismissing tbe bill. Tbe decree, therefore, must be reversed, and one will be here rendered overruling tbe motion to dismiss for want of equity, and the cause is remanded.

Reversed, rendered and remanded.