Ferguson v. Huston

Opinion of the Court delivered by Tompkins Judge. Huston assignee of J. L. and Milton Matthews brought his action of debt against Ferguson on a note made by said Ferguson to said J. L. and Milton Matthews. The circuit court gave judgment against Ferguson; and to reverse that judgment this appeal is prosecuted. On the trial of the cause, after the plaintiil had given the note in evidence, the defendant introduced evidence to prove that the payees of this note were carriage makers, and that he was a carrier of the mail from Jefferson City to Boon-villa in Cooper county, his residence, and that, the payees re — 409 — sided in Columbia in Boone county: and that the defendant in the fall of the year 1837, applied to the payees to make him a two horse mail coach; that' they undertook to make him a coach suitable for carrying the mail on said route, for three hundred dollars: that whilst they were making said coach, they were informed- by the smith that the irons were too light and weak; and that said coach, when it was delivered to the defendant, had on it a thick coat of paint, calculated to hide, its defects; and that after performing one or two trips, as a stage coach, it became so wrecked as to be unfit for use. The plaintiff gaye some rebutting evidence. The defendant in the circuit court, appellant here, asked of the circuit court several instructions, which are in substance as follows: 1st. If they believe from the evidence, that the note sued on was made in consideration of a carriage manufactured by the payees of said note for said defendant, for the purpose óf a mail coach; and if they also find that said carriage was worth nothing, then they must find for the defendant. 2nd. If they find that the consideration has wholly failed» they musi find for the defendant. 3rd. If they find a partial failure of the consideration of said note, then they must deduct the amount of such failure from the amount of such note. 4th- If they find that the carriage aforesaid was, made for a mail coach, by the payees, and that it formed the consideration of said note, and that said carriage did not answer the purpose for which it was made, and that the defendant oifered to return the same in a reasonable time to the payees after it had come into his possession, then they must find for the defendant. 5th. If they find that the payees of the said note were carriage makers, and as such made and sold the said carriage to the defendant, for the purpose of a mail coach, that in such case .there was an implied warranty on the part of the payees, that the said carriage would answer the purpose for which it was made and sold, and if they further find thftt the carriage did not answer the purpose aforesaid, then the410 Sald payees are liable to the said defendant upon their warranty aforesaid, and that the amount of the said damages are to be taken into consideration by the jury, and deducted fr°m the amount of the recovery by said plaintiff upon said note. 6th. That although the defendant did not offer to return the said carriage in a reasonable time, and although he gave no notice of its defects to the payees of the note, yet if the jury find that it was purchased for a mail coach, and formed the consideration of the said note, and if they further find that it was made and sold to the defendant by the payees aforesaid as carriage makers, and if they further find that said carriage did not answer the said purpose, then they must take into consideration such defects, and deduct the amount of the same from the plaintiff’s recovery. The circuit court refused to give any of the instructions above prayed. The circuit court having refused the instructions asked above, gave these following. 1st. If the jury believe that the wox-k was fraudulently executed, or that it was done by contract for a certain purpose and failed to answer the purpose for which it was designed, and shall further find that it was wholly worthless, they will find for the defendant. 2d. But if the jury believe the work was worth any thing, and that the defendant has failed to give notice of its defects, in a reasonable time to the plaintiff, or to return the same, then he is to be presumed to have acquiesced in the defect of the work, and is not entitled to any deduction from the amount of the note. The instructions given by the court were excepted to, and the refusal of those asked was also excepted to. A new trial was also asked and refused. The reasons assigned for asking a new trial, were that the court had erred, both in giving and refusing instructions as above mentioned. So much of the instructions asked by the defendant, and so much of those given by the court, as relates to the necessity of an offer to return the carriage to entitle the defendant to a verdict, is not warranted by the evidence in the — 411 — cause; there being no .evidence given that the defendant , I offer1 to return fu 1 The points material to a< correct decision of this cause are; 1st. If 'the carriage be-worth any thing, can the defendant avoid the payment of his note -without either returning or offering to return the carriage within a reasonable time after the discovery of the unfitness-of said-carriage for the purpose for which it was constructed'? 2nd. Is the defendant entitled to a set-off against his note for any omission of the payees-to .execute the work faithfully and skillfully? It is admitted «by the counsel for the appellee, plaintiff in the c-ireuit court, Huston, that there are authorities on each side; but as those authorities are diligently collected by the respective-counsel, and wilhbe, under-the provisions of the statute, printed along with this opinion, I-shall not review: them, but content myself with giving my reasons for my own opinion. To this method I am.theimore inclined, because, the court, at this term, consists of only two judges, and they differing in opinion, the judgment of the circuit courtis affirmed by operation of law. We learn from Bacon that-“At common daw., if the plaintiff was as much or even more indebted to>the defendant, “ than the] defendant was indebted-to ^him, yet he had no “ method .of striking a balance; the only way of -obtaining “ relief was to g© into a court of ¡equity. To remedy this “ inconvenience, it was enacted by statute 2d -of George 2, “.that where there were mutual debts between the plaintiff “ and defendant, -or if either party be sued as executor or ad- “ ministrador, where there are mutual debts between the “ testator or intestate, and either party, one debt may be set “ off against the other; and such debt may -be given in evi- “ denee on the general issue or pleaded in bar, as the nature “.of Aire case shall require, so as at the time of pleading the “ general tissue, where any such debt of the plaintiff, his tes- “ tato¡r or intestate, .is intended to be insisted on in evidence, “ notice shall he given of the particular sum or debtintend- “ ed to he insisted on, and upon what account it became due, &c.” 6 Bacon, title set-off, letter A. — 412 — At letter C. in the same title, the author tells us that “ If “ having been doubted, whether mutual debts of n different “ nature could be set off against each other under the above- “ clause of the act of the 2 of George 2, it was enacted by “ 8 th George 2, that by vir ue of the said clause mutual debts “ may be set off again A each other, either by being pleaded, “ &c. notwithstanding such debts are deemed in law to be- “ of a different natuie; &c.” Under these acts, it was decided that a set-off cannot be pleaded to an action of covenant for general damages, so>> neither can uncertain damages be pleaded by way of set-off to an action of covenant for rent, see same author, same letter and title. “And a. defendant cannot set-off a claim. “ for bad debts made- by the misconduct of the plain-tiff’in, “ selling goods as factor, such misconduct is properly to be “ inquired into in a suit for that purpose.” But it will be answered,, that the defendant in the cause now to be- decided' does not call the allowance,, which he-claims in this case a set-off. If it had been so called, I can scarcely imagine, that any court would have, decided that it ought to be allowed. Yet that is the true-name, for it cannot be called a payment which is made in what the note calls for, viz. money;, nor can it be called a satisfaction, for that is made in something else than.what is premised in the note to be paid, and which must be accepted by the payee in place of what is promised to be paid. The English courts would not allow a set off of damages to-be recovered in an action founded on the contract. But if the defendant be entitled to recoverfrom the plaintiff in this cause any damages for any defect in the carriage,, which appeal’s to have been the consideration of the note- sued on, those damages must be recovered in an action in form ex delicto.. Much less then would an English court allow a set off of such damages. Having reviewed the English Statutes of set off and the decisions of the courts on those statutes, I will proceed to review our own statutes on that subject. Our first act was passed in 1S04. That act provides that, “if two or mora “dealing together be indebted to each other in bonds, bills* “bargains, promises, accounts or the like, and one of them — 413 — “commence an action in any court, if the defendant, cannot “gain say the deed, bargain, or assumption upon which he “sued, it shall be lawful for such defendant to plead pay-“mentof all of part of the debt or demand; and give any “bond, bill, receipt, account or bargain in evidence,” and judgment was by that law directed to be given in favor of the party plaintitf or defendant in whose favor the balance was found. Thus stood our law of off-set till the 8th December ISIS, when the law was so changed as to allow judgments to be set-off. If it may be proper to l’efer to'the history of that law, I can say it was introduced by an experienced and accurate lawyei; from the county of St. Louis alone there were three member’s of the house where the bill originated, who ranked a nong the able.,t in the territory, and one of them still remains a member of the bar, and maintains his ascendency. In that house no one member of the bar expressed a doubt of the necessity of the amendment. By this also, it was made necessary to give notice of set-off unless it were pleaded in bar. In the revised code of 1S25, this law was left as it was framed by the Territorial Legislature of 1818; and in that of 1835, it reads thus: “If “any two or more persons are mutually indebted in any “manner whatsoever, and one of them commences an action against the other, one debt may be set-oil’against the “other; although such debts are of a different nature. In ° _ all the changes debt, viz: demands founded on the contract alone are allowed tobe set-off. D'of'ect °r' unsoundnesa in a chattel'-bo^set^up^m of a ru ofnotogtraífór cJiaUt'b' unless the c, on or un-soundness, returns or t^rn^he^hat tel purchaunl £o valuo'lo'ss!0 ^apet0"¿“d^ this point. It is not asserted that our own courts have in all this decided oiherw!se than in strict accordance with those England. Indeed I am not informed that they have in any ° j j case been solicited even to decide otherwise than those England did, until this cause was brought up. This being the case, it appears to me that it would be an assumption .... . . , ..... legislative power in the courts, were they to decide as it is here contended they ought; that the defendant should be allowed to set-off against the note sued, any damages he may have sustained in consequence of the ill execution of the carriage given in consideration of this note. In this view I am confirmed by ret eral consideiations 1st. We have — 414 — courts of chancery as they have in England, to whom application may be made for relief in cases of peculiar hardship. "The ?fli section of the 5, article of the act relating to justices courts (R. C. 3^35, p. 359.) is applicable only to suits instituted before a justice of the peace. 2nd. Such riotes are, with us, assignable, and the assignee may, by statute, sue on them in his own name, which in England he could not do: by this act the legislature indicates a wish that they should, in some measure, supply the place of money; and their value in this respect would be much lessened, if those notes were to be reduced in the nominal value for any injury the maker may have sustained by a failure, in part, of. the consideration. Tnthe third and last place the legislature had the subject under their consideration, on one-occasion, and allowed the consideration of such notes,'as were sued on before justices of the peace, to be impeached either in whole or in part, but made no such provision for suits on notes commenced before the circuit courts, see page 359, of the digest of 1835, sec. 7, of 5th article of the act to establish justices courts and regulate proceedings therein. The whole law of set-off is an innovation on the common law, and as such, it-ought to be strictly construed. Neither our own Legislature nor that of England ever permitted any thing but demands in form ex-contracter to be off-set. And the last mentioned act of the legislature of Missouri -giving the justices courts power to impeach the-consideration of notes &c. is in my opinion a command to'the other courts t-o refrain from such -acts. Tbe common law, in my opinion, is, and ought to be, that as the'maker of the note failed to return the carriage, •or to offer 'to return it, within a reasonable time after the alleged defect was discovered, he cannot now make any good defence against the payment of the full amount of the note unless he prove that it is worth nothing at all. The instruction of the circuit court was, in my opinion, more favorable to him than it should have been. For the reasons above given its judgment ought, in my opinion, to be affirmed.