Henniss v. Page

The opinion of the Court was delivered by Rogers, J. This is an action of debt on bond, by John Page, assignee of Samuel Page, against John Henniss. The defendant pleaded a set-off, and under .that plea gave in evidence a judgment, Eli Thomas v. John Hammond and Samuel Page; a scire facias to revive the same; and judgment, December 13th, 1834, against Samuel Page alone; and an assignment of the judgment, on the 3d of April, 1835, to the defendant. In avoidance of the set-off, the plaintiff proved, that at the time the bond was given, John Page said to Henniss, “ Now you will go and buy another judgment against me.” Henniss said, “I will not buy another judgment against you. I will pay the bond when it becomes due.” It appears, from a previous part of the testimony, that the bond on which suit was brought was the result of a compromise of former conflicting claims, and a further advance of cash to the defendant, to the amount of two hundred dollars. It would seem, that the precaution was taken, because of a similar difficulty in which the plaintiff had been involved by the defendant. The contract, then, as I understand it, is, that the defendant agrees, that in consideration of a compromise, and of a further advance of money, he will not purchase another judgment so as to set it off against the bond in suit, but that he will pay the same, when it becomes due. The question is, whether the defendant is bound by this agreement. The contract is one which may materially affect the interest of the plaintiff; for his credit may depend upon the punctual payment of the money loaned, at the day. Why, therefore, he may not guard himself against this contingency, by such a stipulation, it is difficult to imagine, particularly as there is nothing in the contract either unfair, illegal, or contrary to public policy. The statutes of set-off are intended for the benefit and protection of defendants ; and it is grown up a maxim in the law, that a person may waive a statute intended for his benefit. Quisquís potest renunciare jure per seintroducto. It is optional with defendants to avail themselves of the statutes of set-off; and if they choose to preclude themselves from this advantage, at the time, or by a previous agreement, why may they not be permitted to do so ? Each party consults his own interest in the agreement, and it is best ^eave Pities at full liberty to make their own contracts, unless opposed to some principle of policy or good morals. The argument assumes ground, may be the consideration or form of the agreement, whether written or parol, yet the defendant can insist on the set-off. Eor this position, the defendant relies on Colson Assignee of Hunter, (1 Esp. Rep. 378); Lechmere v. Hawkins, (2 Esp. Rep. 626); Eland v. Kerr et al. (1 East, 375); Taylor v. Okey, (13 Ves. 180); Comfort v. Rivett, (1 Maule & Selw. 510); The Assignees of English v. Simons, (22 Com. Law Reps. 383). The two cases of Hunter v. Welsh, (1 Esp. Rep. 378,) and Lechmere v. Hawkins, (2 Esp. Rep. 626,) which gave rise to the doctrine for which the defendant contends, were decided by Lord Kenyon, at Nisi Prius. In Leehmere v. Hawkins, Erskine contended, that the defendant could have no benefit of his set-off: that where a creditor borrowed money of his debtor, under an express promise to pay it, it bound him under every circumstance to the absolute payment; nor could his undertaking be satisfied by setting off the debt against his own demand. In answer to that argument, Lord Kenyon said, he knew no such law; nor did he think, there was any such legal obligation on the creditor; it might, be an honorary obligation, and such as a man who gave it ought to observe; but if he thought fit not to consider such an obligation as binding, he could not compel him. They were mutual subsisting demands at the time of the action brought, and such as the statutes of set-off gave the party defendant power to set off against the plaintiff’s demand. Besides this, if he were to refuse the set-off here, it would drive the defendant into a Court of Equity, where the judgment obtained here would be set off against the debt admitted to be due by the plaintiff to the defendant. If, as Lord Kenyon supposed it was the case, of an honorary, and not a legal obligation, no person can question the soundness of the decision, nor that a Court of Equity would relieve the defendant. The decision must be based on the assumption, that the promise amounted to nothing more than what the law implies; for in every contract to pay money, it is implied, that it shall be paid in legal money; and no person. doubts, that in such cases, ■a set-off is a legal defence. But if the promise was part and parcel of the contract, made for a consideration, and without which the contract would not have been made, it is something more than an honorary engagement; it is a legal obligation which a Court will enforce; and this was the opinion of the Court in Eland v. Kerr. The Court there held, that in estimating the plaintiff’s damages, the jury would take into their consideration [279] the loss the plaintiff had sustained by the non-payment of the money; that is, that the jury would give damages for the breach of the contract, which could not be done, unless it was something more than an honorary engagement. The Lord Chancellor decided, in Taylor v. Okey, on the opinion of Lord Kenyon, as expressed in Lechmere v. Hawkins, *that a Court of would relieve a defendant. Now that a Court of Equity would relieve a person against his express agreement, thus in effect enabling him to commit a fraud, is a position supported by no authority which has come under my notice, and which I venture most respectfully to deny. It may be, that a case may occur, under very peculiar circumstances, in which the defendant might claim the intervention of a Court of Equity; but no such circumstances exist here. It is simply the case of a person wishing to be relieved from a contract, with a valid consideration, contrary to no rule of either law. or morality. Eland v. Kerr et al., was the case of an assumpsit for goods sold and delivered. The defendant pleaded a set-off, of more money due to him, from the plaintiff. Replication, that the goods were agreed to be paid for in ready money; which replication was held to be bad, on demurrer. Lord Ellenborough, in Farr v. M'Iver, S6 East, 138,) in speaking of this case, says, “As to the case of Eland v. Kerr, there a party, upon a sale of goods, had stipulated for ready money payment only, which was held to be satisfied by a payment of his own bill. I defer to the authority, but am not convinced by it.” On the authority of the ease of Eland v. Kerr, Comfort v. Rivett and English v: Simons were ruled; and thus stands the matter on authority in England. From the reasons given, and the doubts expressed, it appears to me plain, that if the defendant had, in addition to the promise to pay in ready money, as in Eland v. Kerr, expressly agreed that he would not purchase other claims, and set them off against the ■plaintiff’s demand, the decision would have been entirely different. Rut be this as it may, this Court are neither trammelled by authority, nor are we convinced by the reasoning, in the cases cited. If the defendant knew the truth, as to the bond, (as the jury have found,) and made a compromise of other matters, with an understanding between the plaintiff and defendant, growing out of and connected with this compromise, that the bond should be paid, at all events, when due, and that the defendant should not buy up another judgment and set it off against it, then, neither in justice nor equity, ought the set-off to be allowed. In my opinion, a Court of Justice is never better employed, than in sustaining the principles of good faith, and in discountenancing fraud, or breach of contract. My greatest difficulty has been, in determining whether what took place amounted to a contract; [280] but from this difficulty we are relieved by the verdict of the jury, under the charge of the Court. Judgment affirmed. 'Cited by Counsel, 5 Barr, 379: 3 Grant, 88. Cited by the Court, 5 Watts & Sergeant, 368; 12 Casey, 234; 2 Grant, 494.