Read v. Jeffries

16 Kan. 534 | Kan. | 1876

The opinion of the court was delivered by

Brewer, J.:

During the year 1873 Read was the owner of a lot in Winfield, upon which he was putting up a bank building. The carpenter work was let by contract to one Tansey. Jeffries was employed by Tansey, and did work under him upon the building. When the building was completed there was a balance still due Jeffries for his work. For this balance he was proposing to file a lien, but desisted upon the statement of Read that another party had filed a lien, and his promise that he would make that a test suit, and if compelled to pay that claim would pay Jeffries his. Read adjusted that claim without suit, and paid a reduced amount in settlement of it. Thereupon, the time to file a lien having expired, Jeffries brought his action to recover the amount due for his work.

We see no error prejudicial to the plaintiff in error in the various rulings complained of except in the one matter of a set-off. Read proposed to set off against the plaintiff’s claim a judgment in his favor and against plaintiff and Tansey. This was disallowed, and in this we think was error. The judgment was a proper matter of set-off. An action can be maintained on a judgment, and e converso, it can be set up in an answer and used as a defense. Burnes v. Simpson, 9 Kas. 658. Though the judgment was against two parties an action could be maintained upon it against either of the judgment-debtors, and in like manner it could be used as a set-off against either. Gen. Stat., p. 183, §§ 1 and 4. Counsel contends that the action was one for unliquidated damages for breach of a contract, and that therefore no judgment could be made a set-off. But the contrary has already been decided by this court. Stevens v. Able, 15 Kas. 584; Pomeroy on Remedies, §§ 798, 799. For this error the judgment must be reversed, and the case remanded for a new trial.

All the Justices concurring.