Latimer v. Lyon

Beck, P. J. This was an equitable suit praying for injunction, etc., to which the defendants filed general and special demurrers. Upon the conclusion of the hearing, the court held that as the petition showed “on its face an indebtedness admitted to be due to the defendant, and no offer being made to pay the same,” the general demurrer should be sustained; to which judgment the plaintiff excepted. The court did not err in this judgment. Whether there was an express admission of indebtedness by the plaintiff to the defendant or not, the facts set forth in the petition required the conclusion reached by the court that the petition showed on its face (taking the exhibits into consideration) an indebtedness due to the defendant, and no offer to pay the same. Failure to offer to pay the indebtedness shown was a failure on the part of the plaintiffs to do equity; and under the principle that he who seeks equity must do equity, the court did not err in sustaining the general demurrer. The allegations of collusion between the two defendants, which are in part relied on, can not avail the petitioner here, as no collusion to do anything unlawful is shown. If any collusion is shown, it amounted merely to an agreement to do that which was lawful. Judgment affirmed. All the Justices concur.