Norwich Printing Co. v. Kloppenberg

Carpenter, J. It will relieve this case of some confusion and a possible misunderstanding of the real point in dispute if we bear in mind the distinction between this suit against Thayer and the former suit against Kloppenberg which is now ended in a judgment. The present suit is now prosecuted against Thayer alone; and against the demand now made on him he seeks to set off a claim which he has against the plaintiff. He claims no set-off or other defence in respect to the judgment against Kloppenberg. Nor will his claim, if allowed, affect that judgment or the assignment of it to Jennings, the plaintiff’s counsel. That judgment and assignment will remain in full force whatever may be the disposition of this case. Nor is the subject matter of this suit identical with that. The most that can be said is, that this suit grows out of that; and if the demand against Thayer is collected, it will operate as a partial payment of that judgment. In that way Jennings, aside from the assignment to him of the demand in suit, may have an incidental interest in the question; but that circumstance in no wise affects the equities existing between Thayer and the plaintiff. If Jennings has any interest that will affect those equities it grows out of the assignment of the demand against Thayer, and not out of the assignment of the judgment against Kloppenberg. Therefore we may lay that judgment out of the case, and the question presented is simply this:—Can a plaintiff, after suit brought, assign the demand to his attorney and thereby defeat a legal right of [300] set-off which the defendant had at the time the suit was commenced ? The bare statement of the question ought to be a sufficient answer. The plaintiff however claims that Rumrill v. Huntington, 5 Day, 163, Benjamin v. Benjamin, 17 Conn., 110, and Ripley v. Bull, 19 id., 53, virtually answer the question in the affirmative. Rumrill v. Huntington was this:—Rumrill recovered a judgment against Huntington; Huntington at the same time held three judgments against Rumrill. Rum-rill assigned his judgment to Bradley, his attorney, of which Huntington had notice. Huntington afterwards brought a suit in equity against Rumrill for a set-off. The County Court decreed a set-off, and the judgment was reversed on a writ of error. The statute of set-off had not then been enacted and the court held that Bradley, being a creditor of Rumrill, was equal in equity with Huntington, another creditor, and, consequently, that the assignment to him was effectual to prevent the set-off. Benjamin v. Benjamin was similar in its facts and the principle involved was identical with that involved in Rumrill v. Huntington. A majority of the court, three judges against two, decided it in the same way, but admitted that it was an exception to the general rule, that an assignee of a non-negotiable chose in action takes it subject to equities existing between the original parties, and contrary to the general current of decisions elsewhere. Ripley v. Bull presented the same question upon similar facts, except that the debts were not evidenced by judgments. The court held that that circumstance did not distinguish the case from the others, and following those cases decided it in the same. way. These cases being, as they confessedly are, exceptions to a salutary rule of very general application, and contrary to the general current of authorities in other jurisdictions, liable as they certainly are to deprive suitors of a strong natural equity, should not be followed except in eases- precisely analagous in fact and in principle. In other words the exception should not be extended. Can this case then be reasonably distinguished from the [301] cases referred to? We think it can in at least two material and important particulars. In the first place, when this suit was commenced the defendant had a legal right by statute to set off his claim. The Practice Act (sec. 5,) provides as follows:—“ In cases where the defendant has, either in law or in equity, or in both, a counter-claim, or right of set-off, against the plain- ' tiff’s demand, he may have the benefit of any such set-offs or counter-claims by pleading the same as such in his answer, and demanding judgment accordingly.” This is broad and comprehensive language and was evidently designed to do away with all technicalities and enforce the equities between the parties in all cases. No such statute was in force when the decisions referred to were made. When the first case was decided there was no statute of set-off. Such a statute was in force when the second was decided, (Gen. Statutes, p. 424, sec. 13,) but does not seem to have attracted the attention of the court; and the third decided that the statute was not applicable to the facts of the case. In the next place, the assignment in this ease was not made until after the suit was brought. In all the cases referred to the assignment was prior to the bringing of a petition for a set-off. In matters of this kind the rights of the parties should be enforced as they existed at the commencement of the suit. When this suit was commenced Jennings had no claim on the demand against Thayer, and he could subsequently acquire none that would defeat the defendant’s statutory right to plead his set-off or counterclaim in defence. The Court of Common Pleas having decided otherwise, the judgment is erroneous and must be reversed. In this opinion the other judges concurred.