Utley v. . Foy

RodmaN, J. 1. There is nothing in the first exception of the defendants. Before C. C. P. choses in action were not as *306 signable at law, but in equity they were. Since the adoption of the Code, an action must be brought by the real party in interest. The-plaintiffs as assignees are entitled to sue. 2. As to the right to be allowed the counter-claim. In October, 1862, the defendants and William T. Devane, being tenants in common of certain lands, (Foy and Wright in right of their wives,) entered into a bond to- John A. Williams, conditioned to be void, if they should convey to him a good title of the land. As the bond is not set forth it cannot be said whether it was joint or several; that is, whether all of the obligors were bound for each and all, or whether each wa3 bound for himself only, and in respect to his own share. The parties in the pleadings have treated it as a joint bond, and we must take it to be so. No question is made as to the right of the plaintiffs to recover damages by reason of the failure of defendants to make title to’Mrs. Wright’s share. It does not appear whether or not, the jury embraced in their verdict the damages sustained by Williams by reason of the failure of the defendants to make a good title to the share of Mrs. Foy, so that in order together title he was compelled to give his note to her husband for $300. The parties have made no-point on-the amount of the damages recovered. The defendants plead as a counter-claim, the note which John A. Williams made to Foy in order to-induce his wife to consent to make the deed. This note was given on 25lh February, 186T, payable in two years, and on 12th March, 1867, was endorsed to W. 8. Devane. If John A. Williams had sued the defendants immediately after the making of this note, it is clear it would not have been a set off. 1. Because not due, and 2, because to have allowed it as such would have been to distribute amongst all the defendants, what was the individual property of Foy. Its endorsement to W. S. Devane who is no party to this suit, could not make it a set off. And although the Judge in stating the contentions of the defendants’ counsel, says that he urged as a reason why the note should he a set off, that Devane had agreed that it *307 might be used as such for the benefit of the defendants; jet the case does not state such agreement as a fact, or that defendants were ready and able to surrender the note at the trial. If the note would not be a set oft against Thomas A. Williams, certainly it is not against the plan tiffs. The defendants have shown no error in the record. And it must be remembered that if the appellant fails to assign and prove an error, the judgment, although it may be erroneous, must be affirmed. Re makes up the case, or if he permits the Judge to do it, the Judge does it as his agent; it is still his case, and it is presumed that he has fully and distinctly set forth every ground of exception. All uncertainties and omissions are taken most strongly against him. Pee CuexaM. Judgment affirmed: