Burke's ad. v. Stillwell ex'r

Mr. Justice Faieohild delivered the opinion of the Court. The administratrix of Patrick G. Burke brought an action of assumpsit against Stillwell, the executor of Fowler, and the evidence in it for the plaintiff, was the following writing, executed by Fowler: Columbia, April 5th, 1857. Memorandum for Patrick G. Burke, esq. Patrick G. Burke, plaintiff, ) Judgment in Chicot versus [-Circuit Court, March Lycurgus Jj. Johnson and Nathan Boss. ) term, 1857. For $1,019 19 cts. in damages, amount settled by drafts in my hands, to be accounted for, etc., on settlement. Defendants to pay costs for which execution has been ordered, is not paid, etc. A. FOWLER. With non-assumpsit and payment, Stillwell interposed two pleas of set-off, one of indebtedness of Burke to Fowler, and one of indebtedness of Burke to Fowler and Stillwell, partners in tbe practice of law, which Stillwell, the surviving partner, executor of Fowler, and defendant, offered to set-off against the demand of Burke. Issues were made up on all of the pleas, but the last plea of set-off', to which a demurrer was filed and sustained. An account was filed showing the particulars of the set-off, the charges being for legal services of Fowler as an attorney for Burke, to the amount of five hundred and twenty dollars. Against the allowance of this demand, it is urged, that all but the first item of one hundred dollars, was for services of Fowler & Stillwell, and that the residue belonging to Stillwell, the surviving partner, could not be set-off in this suit founded on a demand of Burke against Fowler. The evidence is as thus contended for by the plaintiff. But the Circuit Court must have thought otherwise, else, having quashed the last plea of set-off, it would have disregarded the evidence as inapplicable to any pleading or issue in the case, on the plaintiff’s motion to exclude it, or would have granted a new trial for its erroneous finding,’ if it had thought, when the motion for a new trial was made, that the evidence had been unwittingly received and considered. But’the testimony is, that Fowler and Stillwell were in partnership in 1855, as the witness thought, and so continued until the death of Fowler, and that the services charged against Burke were rendered after 1855, saving that the suit for whose conduct the first item was charged, was begun in 1854. There was then no plea in the record under which this evidence could have been legally introduced, or been legally considered after the partnership of Fowler & Stillwell had been proved as we have stated. Yet the court, after sustaining a demurrer to the set-off, alleging Burke’s indebtedness to Fowler & Stillwell, rested its finding for the defendant on evidence which sustained that plea, and did not have any other foundation. This must have been the ground of the motion for a new trial, so far as the finding was unsupported by the evidence concerning the set off. But we think this evidence was well received, for the demurrer to the fourth plea, the last plea of set-off, should have been overruled as to the plea, because the plea was good, and should have extended back to the first count in the declaration and annulled it, as it was very faulty in setting forth no cause of action. And, though the court had overruled a demurrer to this count, and the defendant had pleaded to it, he had a right to have it considered and treated as bad, when the plaintiff demurred to his plea. The proceeds of the services of Fowler & Stillwell, belonged equally to Stillwell, as executor of Fowler, and to Stillwell individually, that is in equity, though, at law, the death of Fowler cast the right of action for them upon Stillwell. If this suit had been brought before Fowler died, and against both Fowler and Stillwell, Stillwell could have set-off against the suit any several demand which he had against Burke. This is the principle of our statute of set-off, as expounded by Bietcío, O. J., in a dissenting opinion in Trammell vs. Howell, 4 Ark. 610, and which was adopted as the correct construction in Leach vs. Lambeth, 14 Ark. 668, overruling former decisions of this court, which held that a demand of one plaintiff against several defendants could not be set-off by a demand of oue of the defendants against the plaintiff. What Stillwell could do in the supposed case, he did by his plea in this case, and he had a right so to do. If Burke’s debt to Fowler & Stillwell, by the offer of Still-well, the surviving partner, could go against Fowler’s debt to Burke, his administration cannot complain, and the beneficent object of the statute to settle in one action several causes of action, is promoted. The finding of the court in allowing the evidence in support of the whole account of set-off, was right in itself, and was not a ground for a new trial, for although there was no plea of set-off on'which the evidence could rest, there would have been but for the ill-advised demurrer of the plaintiff to the fourth plea. A party must not drive a court from a legal conclusion, though it was attained by a departure from the law, and by a return thereto in a deviation from ill©gal premises. The whole account of set-off was properly allowed, it was all well proved. The Circuit Court found against the plaintiff, as to her whole demand, though it consisted of one item, and was substantiated. by the memorandum of Fowler, before copied. This result must be attributed to the following writing introduced in evidence by the defendant, over the signature of Patrick G. Burke: “ State oe ARKANSAS, County op Chioot. ' “ Enow all men by these presents, that I, Patrick G. Burke, have this day, nominated, constituted and appointed Henry Smith, of the county and' State aforesaid, my true and lawful attorney, in fact, and in my name, for his sole use, to collect and receipt for a certain claim in my favor, against Lycurgus L. Johnson, Nathan Boss and "William W. Collins, which is in suit in the Circuit Court of said county, or to compromise and settle the same in any manner he may think proper, and when the same is settled, to pay me one-half of the nett proceeds of said claim, and to employ any attorney or attorneys to prosecute the same to judgment, hereby ratifying and confirming all my said attorney’s acts in the premises, as though I were personally present. Witness my hand and seal this 26th day of December, A. D., 1854. P. G. BTJBXE. [seal.]” On consideration of this instrument, the court regarded Heni’y Smith as entitled to the half of the plaintiff’s demand that was not resisted by the set-off. Fowler did not recognize Smith’s claim in making the memorandum, nor did Stillwell in framing the account of set-off, each paper assuming Burke to be the creditor, and the debtor on account of his judgment against Johnson and Boss. Nor unless from the presumption attending the production of the instrument, is there any evidence that Fowler or Stillwell had any notice of its execution. There is no proof that Smith ever accepted it, that he or Burke ever acted under it, and the presumption from Fowler’s acts are strong to the contrary. As the matter was before the Circuit Court, we are sure it was not sufficient evidence. We think it was no evidence, even with Need’s corroborating testimony, to overcome or to resist the evidence of the plaintiff to the residue of her demand, after deduction of the set-off and interest. Upon another trial, these defects may be obviated, but we cannot allow the judgment to stand on the foundation of this writing, as it is brought to our notice. The principle here settled, as the difference between the plaintiff’s demand and the set-off, will not be the subject of enquiry again. The fourth plea of Stillwell must be re-instated, and the first count of the declaration quashed on the plaintiff’s demurrer as mentioned. Eowler received the drafts referred to in his memorandum as money, he promised to account for them on settlement as money, he must be presumed to have converted them into money before this suit was brought. In this, the case is unlike Peay vs. Ringo, 22 Ark. 70, as in that, Eingo & Trapnall did not receive Notrebe’s note as money. We think the action for money had and received is sustainable on the evidence of the memorandum.