63 Mo. App. 206 | Mo. Ct. App. | 1895
Lead Opinion
This is a suit which was . commenced by plaintiff against defendant before a justice of the peace, to recover the sum of1? $112.50 on an account for boarding 'by ¡the .'former of the latter’s horses. The defendant filed as a vset-off two promissory notes, which had been executed by plaintiff to Mark Williams and by him indorsed and delivered to the defendant, one of which was for1 $100 and the other for $86.71. At the trial in 'the circuit court, which resulted in judgment for defendant and from .which plaintiff has appealed, evidence was offered which tended to prove a statement of facts something like this:
The defendant, an incorporated furniture and carpet company, took the notes already described from Williams, in exchange for? furniture and carpets, paying value therefor in that way. At the time of the purchase of the notes, the plaintiff,' the keeper of a livery stable in which horses were boarded and cared for, was boarding and caring for the defendant’s horses, for which, under an agreement then in force, the defendant was to pay plaintiff $112.50 per month.
At the trial no instructions were asked or given, nor were any exceptions preserved to the admission or rejection of evidence, and it follows, therefore, that if the judgment can be upheld by us on any theory of law applicable to the facts which the evidence tended to prove, it will be affirmed.
The statute provides that certain kinds of personal property mentioned by it, when owned by the head of a family, shall be exempt from attachment and execution. R. S. 1889, sec. 4903. It is further provided, in section 4906, that each head of a family, at his election, in lieu of the property mentioned in the first and second subdivisions of section 4903, already referred to, may select and hold exempt from execution, any
It is thus seen that the plaintiff’s demand was exempt from attachment and execution against him, since it did not exceed $300 in amount. Can the judgment of the trial court be sustained on the theory that the plaintiff’s, demand, though exempt from attachment and execution, was still subject to set-off by the defendant?
The statute also provides that in actions before justices of the peace, a defendant may set off any demand he has against the plaintiff, provided he owned it at the commencement of the action, etc., and that mutual judgments between the parties may be set- off, the one against the other. E. S., secs. 6204-6283. The statutory provisions just referred to must be construed with reference to the exemption statutes. Statutes of the latter kind, being benevolent in their character, are always entitled to a liberal construction. Such construction shall be given as shall not suffer the statute eluded. The intention of the legislature is to be resorted to to discover the meaning, and a thing - within the letter is not within the statute if contrary to the intention of it. People v. Ins. Co., 15 Johns. 385; Mallory v. Norton, 2 Barb. 424. The intention of the legislature should be followed with reason and discretion, though such construction seem contrary to the letter of the statute. Jackson v. Collins, 3 Cowan, 89.
The clear and manifest intention of the lawmaking power of the state was to exempt a demand like that of the plaintiff, under circumstances the evidence discloses, from any kind of coercive legal process. If such
To subject' the plaintiff’s demand to defendant’s set-off would be as much a legal seizure thereof as if a creditor had impounded it under process of garnishment on an execution or attachment. The legal effect would be the same in either case and therefore it can not be allowed. Waples on Homesteads and Exemp., sec. 5, p. 829; Smith v. Sills, 126 Ind. 205; Jiniker v. Hustus, 113 Ind. 534; Puitt v. Beard, 86 Ind. 172; Carpenter v. Cool, 115 Ind. 134; Beaurer v. Teasdale, 25 Mo. App. 25; Collins v. Murphy, 90 Tenn. 300; Carlee v. Thomas, 74 N. C. 54.
Nor do I think the judgment can be upheld, as defendant contends, on the ground that it was shown
As was further said in the same case, to suffer ■such a defense to be interposed would at once destroy all the intended benefit of the statutes to those entitled to protection under them. But it will be seen by reference to the statement of the facts which the evidence tended to prove that there is nothing there upon which to base defendant’s contention.
Upon no theory of law applicable to the case can the judgment be upheld, and it ought accordingly be reversed and the cause remanded.
Concurrence Opinion
(concurring).—In concurring in the foregoing opinion,, we deem it proper to distinguish between the case presented and one where, there are mutual credits between the parties. In the latter instance the law will imply an understanding that the