Slaydon v. McDonald

82 Miss. 504 | Miss. | 1903

Oalhoon, J.,

delivered the opinion of the court.

Plorian -Seal, Pred W. Eaton, and E. L. Lawrence owned the steamboat Demopolis — each an undivided one-third interest. On Pebruary 18, 1902, Plorian Seal and Fred W. Eaton conveyed their two-thirds interest to the a-ppellant, W. FL Slaydon; it being then understood that Slaydon was to pay two claims against the boat — one, of $500, with interest, to a bank, and another, of $91, to Plorian Seal, one of the vendors of the two-thirds. interest. On March 13, 1902, -Seal having had to pay the bank, Slaydon, to evidence his debt for the bank debt and interest and the $91, executed, with appellant Henry Egart as co-maker, a promissory note of that date, payable sixty days thereafter, to the order of Elorian Seal, for $603.50, which Seal indorsed in blank, and which fell into the hands of the appellee, W. T. McDonald, in due course of trade, as must be assumed. McDonald sued Slaydon and Egart, the two makers, who pleaded that the consideration for the note had failed as to $375.55, which sum was made up of debts of the boat other than those which Seal had represented as all the boat owed, ánd that he had agreed that he himself would pay any other debts, and that Slaydon had to pay and did pay these other debts, and credit as setoff is claimed. No replication was ever filed to this plea, and this presents the only question in the case; there appearing to be no mutuality in the setoff, and that Slaydon had paid the debts mentioned in the plea between February 18, 1902, when Slaydon got his bill of sale to the boat, and March 13, 1902, when he made the note sued on. . Now, the record shows that a jury was impaneled and accepted by the parties, and that the counsel stated their respective contentions to the jury, and plaintiff’s evidence and defendants’ evidence were offered, and then counsel for plaintiff moved to exclude all of the evidence for defendants. At this period, before the court acted, counsel for defendants, for the first time, announced that they had a motion which they desired to present, which was on the motion docket, but not before called to the attention of the court. This motion was for judgment for defendants for want of replication to their plea as setoff. The court properly overruled this motion at this stage of the proceedings, especially as defendants had had the benefit of the plea by stating their contentions to the jury, and the evidence showed there tvas nothing in them. We feel sure that no case can be found, with the same presentation exhibited by this record, holding adversely to our conclusion.

Affirmed.