Jarecki Mfc. Co. v. Haymaker

OPINION, Me. Chief Justice Paxson : This was an action in the court below by the holder of commercial paper against an indorser. The court left the question whether the plaintiffs were bona fide holders for value to the jury, and they have found it in their favor. They could not have well done otherwise, as the evidence upon this point was uncontradicted. Mr. Stoup testified distinctty that when he assigned the balance due upon this note to the plaintiff company, it was to be in part payment of what he owed them, and he was to have time on the balance. This is his language : “ Mr. Jarecki was to give me time on the balance; they were not to push me; they were to take this in part payment of what I owed them, and Mr. Weart was to give me time on the balance and not push it, as the account was old and had been running a long time.” Stoup is not contradicted in this state [545] ment, nor is it inconsistent with the written assignment, dated November 30,1888. It is therein stated that when the note is paid it is to be a credit upon his account. There was nothing in the record to show that the plaintiffs had notice of any defence or set-off at the time they took the note. Upon the trial below, the defendant offered to prove “ that Leggett & Haymaker made a contract with Johnston & Stoup to drill a well for them, and that that contract was a subsisting one at the time the note in suit was given; that, as a consideration for drilling that well, they were to pay Johnston & Stoup eighty cents a foot; that about July or August, or perhaps the first of September, 1888, after the note in suit had been given, Johnston & Stoup failed to complete their contract; that they had partially drilled the well; that they stuck a set of tools in the hole ; that they burned down the derrick, and then abandoned the well with the tools in the hole, so that it was of no benefit whatever to Leggett & Haymaker; that Leggett & Haymaker, under that contract, had paid to Johnston & Stoup certain amounts of money exceeding the amount of the note now in suit; and that, on that account, they have a right of action against Johnston & Stoup for the money so paid under the uncompleted contract. This to be followed by evidence of notice to the plaintiffs before they took this note, that we had a set-off.” The learned judge below declined to admit the evidence embraced in this offer, and this ruling forms the subject of the single assignment of error. It requires but a moment’s consideration to see that the offer was irrelevant. The note in controversy never was the property of the firm of Johnston & Stoup. It belonged to Stoup individually. While Johnston and Stoup were partners in drilling wells, they were not partners as to this note. It is true they held a joint interest in the leases sold to Leggett & Haymaker. Each, however, was at liberty to sell his interest and retain the proceeds. Both interests were sold at the same time for $8,000, and the notes given for the purchase money, of which the note in suit was one, were divided between Johnston and Stoup, each getting his share, $4,000. Stoup received this note, transferred it to Berg & Co. for value as to part, and then assigned the balance of it for value to the plaintiff company. This suit, as before observed, was brought by the [546] bolder of the note against Haymaker as indorser. Haymaker now attempts to set off damages growing out of a contract between-the firm of Johnston & Stoup on the one hand, and Leggett «fe Haymaker, on the other. This was objected to, partly upon the ground that a suit is now pending in the Court of Common Pleas of Butler county, between Leggett & Hay-maker and Johnston «fe Stoup, wherein Leggett & Haymaker claim that Johnston «fe Stoup owe them $1,215.16, and Johnston <& Stoup claim that Leggett «fe Haymaker owe them a large sum of money. The attempt to adjust this controversy between these two firms, in a suit to which neither firm is a party, is somewhat novel in practice. That there cannot be a set-off under such circumstances, is too plain for argument. Our statute is very liberal, but it is not broad enough to cover such a case as this, nor do any of our numerous decisions upon the statute give any countenance to defendant’s contention. We need not refer to them; the case is too plain. Judgment affirmed.