32 Ill. 538 | Ill. | 1863
delivered the opinion of the Court:
This was an action of debt brought on a sealed note, executed by three persons to the defendant in error, dated April 29,1861,. and payable twelve months after date. To the action the defendants pleaded the general issue, and a special plea, setting forth, in substance, that on the 15th of May, 1861, the defendant in error agreed with Heckenkemper, one of the makers, that if he, Heckenkemper, would establish in the Clinton County Court, a certain account which he claimed to have against the heirs of John Hordhouse, deceased, as their former guardian, and that the County Court would allow the same to the defendant in error, then that defendant in error would give Heckenkemper credit on the note sued on for the amount so established and allowed, and then avers that Heckenkemper did, at the August Term, 1861, of the County Court, establish the account to the amount of three hundred and thirty-five dollars, and that the County Court did, at the same time, allow the same to the defendant in error, he then being the guardian of the heirs of Mordhouse, which sum, so established and allowed, the defendants asked to be set off and allowed as a credit on the note, as by the agreement of the parties.
A demurrer was sustained to this plea, and on trial of the issue, by the court, on the first plea, a verdict and judgment was entered for the plaintiff, for the full amount of the note and interest.
The only error assigned is in sustaining the demurrer to the special plea. 6
° It is insisted by the defendant in error, that the plea was bad, because it sought to set off an individual demand of one defendant against a joint claim, in a joint action against him and others.
Under the English statute of set-off, demands to be set off must be mutual and due in the same right, but where there is an express agreement to that effect, one defendant in a suit against him and others jointly, may set off his individual claim. 1 Ch. PI. 571. Our statute is more comprehensive than the English statute, embracing claims and demands of any description as subjects of set-off; at the same time this court has held that an individual demand cannot be set off against a joint demand in a joint action.
We do not, however, incline to consider the plea as technically a plea of set-off, but ás setting up an agreement executed by one of the defendants, to the benefits of which all the defendants are entitled, as going to reduce the amount of the recovery against them. The agreement was a valid one, and founded on a valuable consideration, and of which the defendant in error has had the full benefit. The plea alleges he has been allowed the amount proved by Heckenkemper to be due him, as the former guardian of the heirs of Hordhouse, by the Probate Court, and it would be inequitable and unjust should he be permitted to recover it again in this action. The facts stated in the plea, if not available as a set-off, must be available, as a payment by one of the defendants, of the sum stated, or it must be considered as a new agreement, which has been executed fully. But the defendant in error insists there is no consideration for such an agreement, nor was he authorized to make such an agreement. As to the consideration, it is well settled that a very slight one is sufficient to support a promise. Ch. on Cont. 32, 33; Brooks v. Ball, 18 Johns. 337; Doyle v. Knapp, 3 Scam. 334; and the case of White v. Walker, 31 Ill. 422, where this question is fully examined. The fact that plaintiff in error proved his claim, and had it allowed by the County Court in favor of the defendant in error, is a good consideration. That the defendant in error had no power to make such an ag’reement is not shown. The note is made payable to him, as commissioner to sell the estate of Nordhouse, and he is the guardian of the children whose lands were sold, for which the note was executed. As their guardian, the County Court has allowed to him the amount claimed, of which he can avail, on the final settlement of his accounts with that court, whereas, if he is permitted to recover the amount of Heckenkemper, the latter would be wholly remediless. It would be great injustice to permit the defendant in error to have a two-fold recovery for the same sum. The judgment is reversed and the cause remanded, with leave to take issue on the special plea.
Judgment reversed.
