Spear v. Dey

5 Wis. 193 | Wis. | 1856

By the Court,

Cole, J.

We ''do not think that the facts setup in:fhe answer of the appellant constitute any defence to the bill filed in this cause. The appellant states, in his answer, that he purchased the interest of the complainant (which was one-half) in a certain mill, situated at Wyocena; and that the consideration therefor was not to exceed sixteen hundred dollars. He paid four hundred and fifty dollars down, gave notes and the mortgage which is sought to be foreclosed in this suit, for seven hundred and fifty dollars ; and also gave his bond in the penal sum of one thousand dollars, conditioned to pay one-half of the indebtedness of Hunter & Spear, incurred in building and furnishing the mill, and which indebtedness, he says, the complainant assured him would not exceed the sum of eight hundred dollars. In other words, as a part of the purchase, money, he agreed and became liable to pay debts of Hunter & Spear, to the amount of four hundred dollars. He states that he found the indebtedness of Hunter & Spear much larger than had been represented, and that he had paid for them some thirteen hundred dollars. However, he was under no sort of obligation, legal or moral, to pay that amount for them, and if he has really done so, they certainly ought to be very thankful to him for his kindness, and we might have said that he had shown an unusual ■ degree of disinterestedness, if he did not seek to offset the amount thus paid against what is due upon his mortgage. But this he cannot be permitted to do. There are no peculiar equities in the case, as we can discover, which entitle him to make such an offset. He does not allege that the debts of Hunter & Spear, paid by him, were liens upon the property he purchased, either by way of mortgage or otherwise. And the matter is perfectly inexplicable why he paid for them nine hundred dollars more than he was obliged to pay.

Suppose he had voluntarily paid the personal debts of the complainant, would it be right to allow him to set off the amount' thus paid, without regard to equities that might exist between the complainant and his creditors ? In this case it might lead to great injustice to permit him to make the set-off. The firm of Hunter & Spear, are personally liable for these debts. It does not appear but they are solvent: or they may have good defences against some of these very debts paid by the appellant. ■ Considerations of this nature show how inequitable and improper it might be to sustain the defence and permit the set-off to be made.

In a proper case a court of equity would undoubtedly, by virtue of its general jurisdiction, apply the doctrine of set-off, independently of section 8 of chapter 84 of the Revised Statutes, which provides that, in suits in chancery for the payment of money, set-offs shall be allowed, in the same manner, and with like effect as in actions at law. But for the reasons assigned, we think this is not a proper case for the application of the principle.

Decree of the Circuit Court affirmed, with costs.