Wiggin v. Damrell

4 N.H. 69 | Superior Court of New Hampshire | 1827

Richardson C. J.

One of the grounds on which the defendant rests his motion for a new trial is, that the deposition of Melcher’s clerk was improperly admitted in evidence oh the part of the plaintiff. The object of the deposition was 1o prove Wiggin’s admissions that he was indebted to Melcher at the time Wiggin failed. This suit is in fact a contest between Damrell and Melcher, and Wiggin is only nominally a party. Wiggin’s confession was one clearly against his interest and made before this suit was in the contemplation of any person, and if it is to he excluded, it must be by some technical rule of law. But under the particular circumstances of this case we do not think it necessary to enquire whether that deposition was properly admitted or not. For it now appears by the case stated that the defendant has virtually admitted the fact, which that deposition was intended to prove. He introduced a letter written just before the trial and evidently drawn up at his request for the purpose of being* used upon the trial, in which Wiggin states that Melcher1 had a claim against him and that this note was left with Melcher on account of that claim. There is evidently a good understanding between Wiggin and Damrell. The letter shews that distinctly. And after putting into the case the letter, thus procured, and distinctly stating, that the note was delivered to Melcher on account of a debt, the defendant must be considered as having virtually admitted that there was a debt and is not now to he heard to say there was no debt. We are therefore of opinion that even if the deposition were improperly admitted it affords under the circumstances no ground fora new trial.

But the defendant relies upon another ground, which must be examined. He contends that the set-off ought to have been allowed. In the case of Sanborn v. Little, at the last term in the county of Grafton where a note not payable to order was for a. valuable consideration assigned to third persons and an action brought for their benefit in the name of the payee it was held that the maker might set off a debt due to him at the time of the assignment from the payee. And it is very clear that in this case the defendant is entitled to the benefit of the set-off, unless he, has precluded himself from that advantage by his own acts.

The answer which is given to the set-off is that after this note was assigned for a valuable consideration to Melcher, the defendant expressly promised Melcher'to pay him the amount of it. It is very clear that Melcher might have maintained an action in his own name on this promise. The point was expressly decided in Currier v. Hodgdon. In such an action it is clear that this set-off could not have been allowed ; because the promise of the defendant after the assignment, made him directly the debtor of the assignee and he could no more avail himself of his demands against Wiggiu as a set-off in such a ease than he could if this note had been cancelled, a new note given in lieu of it directly to Melcher and an acf ion brought on the new note in Melcher’s name. The defendant is both in law and in equity the debtor of Melcher, and whether Melcher attempts to enforce his claim in his own name or in the name of Wiggin, neither the the law nor the equity of the case is altered and in neither case can this set off be allowed. Indeed if as the case states the defendant made this note originally for the purpose of enabling Wiggin to pass it to Melcher, this defence is hardly consistent with that good faith which ought to prevail among men.

Judgment on the verdict.