Smith v. Huie

COLLIER, C. J. 1. Our statute of set off provides, that “In all cases where there are, or shall be mutual debts subsisting between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts subsisting between the testator, or intestate, and either party, one debt may be set against the other, either by being pleaded in bar, or given in evidence on the general issue, or notice given of the particular sum intended to be set off, and on what account the sum is due, notwithstanding such debts may be deemed in law to be of a different nature,” &c. Clay’s Dig. 338, § 141. This enactment is substantially a transcript of the 2 Geo. II, ch. 22, § 13, and 8 Geo. II, ch. 24, § 4, 5; Montague on set off, Am. ed. of 1806, p. 16; Dunn v. White and McCurdy, 1 Ala. Rep. 645, and therefore the decisions upon the English statutes furnish rules for its construction. In Howlet v. Strickland, Corp. Rep. 56, it was said, that the statutes cited relate to mutual debts, and do not embrace unliquidated or uncertain damages; but such demands as may be recovered in an action of indebitatus assumpsit. The debt claimed, and the debt to be set off, must be a money demand of a liquidated nature, for which debt, or indeb-itatus assumpsit will lie. A set off cannot be allowed in as-sumpsit, for general damages. 2 Saund. on Plead. & Ev. 313; 1 Esp. Rep. 378; 3 Camp. Rep. 329; 6 M. & S. R. 439; 5 Id. 442 ; 2 T. Rep. 32. But where the defendant may recover under the common counts, his set off will be allowed, though the plaintiff declare specially. 4 Camp. Rep. 385. So it has been held, that a demand for which indebi-tatus assumpsit will lie, may be pleaded as a set off to a debt due on a note; 4 J. J. Marsh. Rep. 245; and that it is not necessary to constitute a monied demand a set off, that any [204] price should have been agreed for the articles sold which compose it. 6 Id. 441. See also, 1 A. K. Marsh. Rep. 19 ; 1 Scam. Rep. 464 ; 5 John. Rep. 104; 3 Wash. C. C. Rep. 34; 2 Id. 132, 161; 3 Hayw. 195; 2 Bay’s Rep. 120; 1 Hals. Rep. 394; 10 Serg. & R. Rep. 14; 2 Dall. Rep. 237; 3 B. & Adol. Rep. 580. In George v. C. and M. Rail Road Co. 8 Ala. Rep. 234, this court said, “ the general rule in relation to set off is, if the money sought to be recovered under a special contract, for damages, may be recovered under the common counts, then the defendant may set off.” This decision is not opposed to any of our previous adjudications, which have been cited for the plaintiffs in error. In Dunn v. White and McCurdy, ut supra, the payment of an outstanding incumbrance was disallowed to the vendee of land, when sued on a note given for the purchase money, on the ground that he had the vendor’s deed with warranty, and his possession had never been disturbed. McCord v. Williams & Love, 2 Ala. Rep. 71, was a case of unliquidated damages, in which the set off relied on, was the breach of a contract by which the plaintiff stipulated to lease to one of the defendants eighty acres of land, and have twenty acres cleared for him if practicable. In Handley v. Dobson’s adm’r, 7 Ala. 359, the set off was a writing, by which the plaintiff’s intestate promised to pay to the defendant “ fifty barrels of corn,” on a day certain, and it was rejected on the ground that it was not a monied demand, but the damages resulting from a breach were unascertained, and depended upon proof of the value of the corn, &c. In that case the defendant could not have recovered on the common counts, but would have been driven to his action on the special contract. Although the allowance of the set off would have been just and reasonable, yet we have seen, that the authorities cited did not tolerate it. In the case at bar, the corn was delivered, and the objection to the set off was, that the price had not been agreed on. This did not make it a case of unliquidated damages within the sense in which these terms Have been used in expounding the English statutes. The defendant’s demand was for money — the value of the corn ; for its recovery indebitatus [205] assumpsit could be maintained, and this we have seen, furnishes a test in favor of its allowance as a set oif. 2. Although the judgment recites, that the cause was tried upon “issues joined,” the only pleading subsequent to the declaration found in the record, are the defendant’s pleas, which are thus stated, “ Defendant pleads in short, by consent, nen-assumpsir, payment, set off, and statute of limitations, and that said supposed claim was not presented to said administrator, within eighteen months after the grant of administration.” The statute of sots off which wo have recited was amendatory of a previous act passed in 1799, which authorized the defendant to plead payment of all, or part of the debt, or sum demanded, and give any bond, bill, receipt, or account in evidence,” and repeals so much of it as permits the defendant to avail himself of a set off under the plea of payment. Notv, although the latter enactment provides, that “ one debt may be sot against the other, either by being pleaded in bar, or given in evidence on the general issue, or notice given of the particular sum intended to be set off,” &c., yet it cannot be admitted that the defendant may make such defence upon giving notice merely, without interposing any plea. The disjunctive or, in order to give effect to the intention of the legislature, should be interpreted on, so as to make a set off admissible under the general issue, where the defendant has given notice that he would offer it. This has been the practical construction of the statute, it is obvious from its context, and still more apparent when considered in connection with the preceding act. , In the case at bar, it does not appear that the defendant gave notice of the set off on which he relied, but it is rather inferable from the bill of exceptions, that it was offered under the plea of set off. True, it may not be necessary, where such a defence is offered under the general issue, that the record should disclose the notice, yet the fair inference is, that the defendant lost sight of the general issue, and looked alone to his special plea, as tolerating the admission of the evidence offered. Defences of set off, it is said, are regarded as in the nature of cross actions, (3 Scam. Rep. 538,) and the plaintiff may reply several matters to a plea of set off. In practice where no replication is filed, it is understood that the plaintiff merely [206] negatives the plea; but he may reply generally, and also insist upon the statute of limitations. Mar. Rep. N. C. 60; 1 Murph. Rep. 154; 1 Dev. Rep. 419; 6 Conn. Rep. 357; 4 McC. Rep. 210; 2 Bibb’s Rep. 285. In McDowell v. Tate, 1 Dev. Rep. 249, it was decided that the words “set off,” entered by the defendant with the general issue, shall be taken as a plea in bar, where the amount is equal to, or greater than, the plaintiff’s demand; where less, it shall be taken as a .notice of set off only, and in this last case, no replication is necessary. In the case before us, the defendant affirms upon the record, that he pleads “set off,” with the general issue, and the jury find the issues in his favor, and that the plaintiff is indebted, to him in a specific sum; the plaintiff, in consenting to go to trial without more formal pleas, has accepted as regular those which the defendant has designated. Bond v. Hill and Fay, 3 Stew. R. 283; Garrard v. Zachariah, 2 Id. 410 ; Abercrombie v. Mosely, 9 Port. R. 145; Pollard v. Stanton, 5 Ala. 451. To apply these principles to the case at bar, it must be understood in the condition of the record, that the plaintiff did not rely upon the statute of non-claim as an answer to the plea of “ set off,” but merely denied the indebtedness which the defendant might attempt to prove in bar. The plea being accepted in the general term in which it was entered, it was competent for the defendant to avail himself of any legal demand which would constitute a set off, notwithstanding it had not been presented to the plaintiffs within eighteen months after letters testamentary had been granted to them. By failing to reply the statute, they tacitly admitted the due presentation of the claim, and could not insist on proof of the fact. The general replication which (in the absence of any in fact) is implied, did not put the presentment in issue, or throw the onus of proving it on the defendant, or even allow the plaintiffs to disprove it. Where an executor, or administrator is. sued in debt, covenant or as-sumpsit, it is incumbent on him to plead the statute of non-claim or limitations, and the same rule will apply where the estate he represents is sought to be charged under the plea of set off. 13 Mass. Rep. 201; 16 Id. 429 ; 5 Pick. Rep. 140 ; McBroom v. The Governor, 6 Porter’s Rep. 32; Bigger v. [207] Hutchins and Smith, 2 Stew. 445; Evans v. Norris, Stodder & Co. 1 Ala. 511; Duval’s Heirs v. McLoskey, Id. 710; Mardis’s adm’rs v. Smith, 2 Id. 382; Sanford v. Wicks, 3 Id. 369; Gray’s adm’rs v. White, 5 Id. 490; Travis v. Tartt, 8 Id. 574. As the general issue will not allow a special replication, where it is pleaded, and a notice of set off given, the plaintiff may perhaps insist upon proof of the' presentment of the defendant’s claim. But here, as the word “ set off” was relied on as relieving the demand from the influence of the statute, and as nothing was said of a notice, which if furnished in due time, would have had that effect, it must be intended, that none was produced at the trial. This view is conclusive to show, that under the pleadings and proof, the rulings of the county court was correct — its judgment is therefore affirmed.