54 Mo. 592 | Mo. | 1874
delivered the opinion of the court. '
To this petition the defendant filed a demurrer, which, on motion of plaintiff, was overruled. He then answered. The answer contains a denial of all the material allegations in the petition, and in addition thereto sets up certain notes as off-sets, upon which defendant was surety for the deceased, and which he had paid off after his death; and also insisted upon the statute of frauds as a bar to the action. All that part of the answer rer lating to the off-sets was by the court stricken out as constituting no defense.
A jury was impaneled and certain issues were framed and submitted to them, embracing all the allegations of facts contained in the petition. After hearing the evidence, the jury found all the issues in favor of the plaintiff and a judgment was entered upon their finding.
First, we will consider the action of the court in striking out a part of the defendant’s answer. The first off-set claimed, was the note executed by the deceased to the defendant, and which was stated in the petition to be due. The ruling of the court, therefore, in this matter, could not redound to the detriment of the defendant, as the plaintiff admitted it in his own pleading and voluntarily gave the defendant credit for it. All the other notes were obligations, executed by plaintiff’s intestate as principal, with defendant as surety, and which remained due and unpaid at intestate’s death. They were duly probated against the estate, and paid off by the defendant after they were probated.
The statute, in force at the time this proceeding arose (and the same provision exists now), says, “In suits, brought by administrators and executors, debts existing against their in
As the defendant did not own the notes, and was not a creditor at the time of the intestate’s death, the notes could not be pleaded or allowed as set-offs in this suit. The case of Morrow vs. Bright, (20 Mo., 298) does not militate against this view. In that case, Morrow’s general assignee for the benefit of creditors brought an action against Bright, for about eight hundred dollars, due upon a note, account stated and agreement, all of which were included in the assignment. Bright pleaded as a set-off, five hundred dollars paid by him after the assignment, on a protested note of Morrow’s on which he was indorsee. The note was protested before the assignment, but not paid till afterwards.
In the opinion, the court says: “'Money cannot be said to be laid out for another, until money is actually paid on his account ; but, in substantial justice, as Bright was Morrow’s surety, and compelled by law to pay the debt, and as Morrow was insolvent, Bright may be regarded as the creditor of Morrow from the time the note was protested. Then, as there was an indebtedness on the part of Morrow, to Bright, and as the very act of assignment was evidence of insolvency, by which Bright became absolutely bound, there was an equity against the demand of Morrow at the time of the assignment. It will be perceived that the court treated the protest of the note as determining the indorser’s liability, and this occurred prior to the assignment. The case goes to the utmost limit of allowing an equitable set-off, but it does not go sufficiently far so as to sanction the claim in this case. The creditors here, in the first place, proved up their demands against the estate of the deceased, and it was not till long after his death that the defendant paid them off. To allow them, therefore, to be introduced as off-sets, would be in dhect opposition to the statute.
We have examined the evidence carefully, and are fully
It is insisted upon as error here, that the court gave verbal instructions to the jury, but the record does not show that instructions were given at all.
The statute of frauds certainly has no application to the case. There was no question raised in any manner affecting any interest in, or title to real estate. We have been unable to discover any such error in the ruling of the court in reference to the admission or .rejection of evidence, as to affect the substantial merits of the case, and we are of the opinion that the judgment should be affirmed.
Judgment affirmed.