McQuesten v. Bowman

17 N.H. 24 | Superior Court of New Hampshire | 1845

Parker, C. J.

This is a plain ease. The plaintiff* brings his action upon a contract by which the defendant agreed to indemnify and save him harmless for having signed certain notes as surety, upon which one Stowell was principal, and he produces a written contract of indemnity, and proves that he was called on to pay one of the notes mentioned, and, after having notified the defendant, paid it before tbe commencement of this action. No exception was raised respecting a demand. It appears, from the evidence of Stowell, that the consideration for the promise by the defendant was an assignment to him, by Stowell, of certain notes and accounts. On this evidence the plaintiff makes out his ease.

On the cross examination of Stowell he testifies that among the notes and accounts which he thus assigned to the defendant were some against the plaintiff, and the defendant claims that he is entitled to have them allowed^ against the plaintiff’s demand. But it is clear that this evidence cannot be received to vary the written contract; thereby making a contract to indemnify the plaintiff against such balance as should be due to him after an allowance of Stowell’s claims against him. Authorities are not necessary in support of this position.

Nor can the defendant use these notes as evidence that he has indemnified the plaintiff. They constitute an unsettled claim which the defendant may pursue in the name of Stowell, and upon the recovery of j udgment he may be entitled to the money. But Stowell himself, if this action were against him, upon.his implied promise to indemnify the plaintiff, could not defend it simply upon the ground that the plaintiff owed him an independent debt.

Nor is the defendant entitled to have these claims allowed by way of set-off, which appears to have been the ground upon which the court directed the jury to allow them. To authorize a jury to allow a demand in set-off, it should be filed as a set-off. Clark v. Leach, 10 Mass. 51; Braynard v. Fisher, 6 Pick. 355; Wood v. Warner, 19 Maine, 23; Wilson v. Reuss, 20 Maine, 421. The defendant has not filed them in set-off, probably for the very good reason that they are not the subject of set-off between these parties, in this action. They are not debts due and payable to the defendant, but claims which have been assigned to him, on which, if he commences an action, it must be in the name of Stowell, who states that there has been no settlement between him and the plaintiff, so that the action would be open to such defences as the plaintiff might have against Stowell. Barney v. Norton, 2 Fairfield 350. The justice of the plaintiff’s objection is apparent, as the case shows that he has another claim against both Stowell and the defendant, on account of another note which he has paid since the commencement of this suit.

But although the defendant is not entitled to a set-off in this action, he may, upon a proper case made, have relief of that character upon the rendition of the judgment. After the amount due the plaintiff is ascertained in this suit, the action may bo stayed, if equity and justice require it, until Stowell’s claims against the plaintiff shall be ascertained in an action for that purpose, and the court can then set off the judgments against each other, notwithstanding the parties on the record are not the same. Wood v. Carlisle, 6 N. H. Rep. 27; Moody v. Towle, 5 Greenl. R. 415; Boardman v. Tucker, 18 Maine, 179; Hooper v. Brandage, 22 Maine, 460; Nims v. Rood, 11 Vt. 296.

Verdict set aside.