Woods v. Harris

5 Blackf. 585 | Ind. | 1841

Blackford, J.

This was an action'of debt for 1,108 dollars and 46 cents, brought by Harris, assignee of Pollock, against Thomas Woods and Edward Armstrong, on a promissory note. -'.There were three pleas in bar. Upon the'first and third there were issues to the country. The second was demurred to generally, and the demurrer sustained. The issues to the country were tried by the Court,' and judgment rendered in favour , of the plaintiff for the amount of the note.’

The only error assigned is,t that the' demurrer to the'second plea should not have been sustained., That, plea is as follows': '

As to 963 dollars and 92 cents, parcel, &c. the’ defendants say actio non, because they say that after the making of the note, and before the assignment, Pollock was indebted to . the defendants in the sum of 963 dollars and 92 cents as follows, viz., 1. The sum of 55 dollars and 42 cents, for work and ■labour performed by said Woods for the said Pollock and at his request. 2. The sum of 20 dollars, for money laid out and expended by the said. Woods for said Pollock■ ánd at his request. 3. The sum'of 30 dollars and 50 cents, for money paid by said Woods to one Crawls for said Pollock and at said Pollock’s request. 4. The' sum of 58 dollars due to said Armstrong from said Pollock by, the .following' due bill, viz.‘ “Due Edward Armstrong 45 dollars, which I promise to pay by the 1st of March next; and 13 dollars likewise. Nov. 30, 1839. (Signed) James T. ’Pollock.” 5. The sum of 550 dollars for a promissory note executed by Pollock ánd,one Murray his surety to Samuel and John Woods, which note is as follows: “$550. On-or before, the 1st of March next, for value received, we jointly promise to pay to Samuel and John Woods, administrators of the estate of James Woods, deceased, or their- Order, 550 dollars, with interest from the 7th of May, 1838, till paid. Oct. 30, 1839. (Signed) James T. Pollock, J. Murray;” which note, the defendants, at Pollock’s request, purchased of the payees for 550 dollars, and the latter assigned it to the. defendants. 6. The sum of 250 dollars, for 296 bushels and 29 lbs. of wheat sold and delivered by said Thomas Woods to Pollock at his request; for which Pollock gave his note to said Woods as follows: “Due Thomas Woods for 296 bushels and 29 lbs. of , wheat, for which I promise to pay him 7.5 cents a bushel, and the rise of the market till the 1st of March next. Nov. 30, 1839. (Signed) James T. Pollock;” and defendants aver that the said rise of market made the wheat, worth 250 dollars; and thereby Pollock became and was indebted to said Woods in 250 dollars. All which make the sum of 963 dollars and 92 cents, for which said Pollock became indebted to these defendants, in. manner and form as in this plea mentioned. - The deféndants áver, that, all and singulár .said indebtedness of said Pollock to the defendants, in maniqer and form as in this plea set forth, was made, and intended to be made so many payments upon the promissory note declared on, and was so much paid upon said note, and was so understood, expressed, and received, and accepted by said Pollock, as a payment of 963 dollars and 92 cents on said note, while the said Pollock held said note, and before the assignment. And therefore the defendants ayer, that, before the assignment, they paid said sum on the note in manner and form •aforesaid, and that Pollock ■ accepted the same as such payment on said note. And this they are réady-to verify.

This plea, as a plea of set-off under the statute, is insufficient, because none of the claims set out in it are legal matters of set-off. Four of the charges are debts alleged to be due from Pollock to Woods, one of the defendants. One of the others is a debt said to be due from Pollock to Arm-charge is strong, the other defendant. And the remaining' an alleged debt due from Pollock and one •Murray jointly to the ’defendants. The defendants could not jointly sue Pollock alone upon-any one of the alleged debts, and none of them,-therefore, can be a legal set-off in this suit. - .

We consider the’plea, however, to be substantially goo.d as a plea of accord and satisfaction. It shows-that,-before' Pollock assigned'the note-sued-on, he was indebted to each' of the defendants in several sums of money, and that he and: one Murray were indebted in a certain sum to the. defen-' dants. These debts amounted, in all, to 963 dollars and 92 cents; and to that amount of the debt sued for, the plea was pleaded. It is alleged by the plea, that the indebtedness described in it was made' so many payments on the note described in the declaration, and was received and accepted by Pollock as a payment on that note before its assignment. The objection, to the plea, á's a plea of accoi'd and satisfaction, is, that it-does not show how the indebtedness relied on was made a .payment by the defendants, and accepted as ■such by Pollock, in part discharge of his, demand. . For example, a part of the indebtedness pleadpd arises from a 'note due by Pollock and' one Murray to the defendants. The plea says, that that indebtedness was made and accepted as a payment; but it does not inform us .in what manner the indebtedness was made >a payment and accepted as such. If the plea had stated, that,"before, the assignment of -the note sued on, the defendants and Pollock and Murray had, after the defendants became possessed of the note given by Poh lock and Murray, agreed that the note last-named should be delivered up to Pollock, and that, in consideration of. such delivery, so much of the debt due to Pollock by the defendants should be considered as extinguished; and the plea had stated further that, in pursuance of such agreement, the defendants had delivered up the last-named note to Pollock, and'lie had accepted it in satisfaction of so much of his demand ;-r-the plea would have been good, so far ás the note due from Pollock and Murray to the, defendants was concerned. But no, such mode, nor any other mode, is set out, by which that note was made, a payment on the debt due to Pollock, ánd accepted by him as such payment.; This is, no doubt, an objection to.-the plea so far as respects that note; but we think it is an objection only to the form, and not, to the substance of the plea, and is not therefore reached by a general demurrer. ■

S. C. Stevens, for the 'plaintiffs. J. C. Eggleston,- for the defendant.-

The plea, with regard to the other parts of the indebtedness- which it describes, is subject to a similar objection to. that' which we have •’ mentioned as applicable’to the. debt due from Pollock' and Murray, but not to'any greater objection.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the issues set aside, with costs. Cause remanded, &c. ■ •