Bernstein v. Coburn

Irvine, O. William Coburn, as assignee of the Bank of Omaha, brought this action to recover on two promissory notes alleged to have been executed by S. Bernstein and J. Kline in favor of that bank. The defendants answered separately, each in addition to other matter pleading as a set-off deposits in the bank at the time of its failure in their favor. Demurrers were interposed to these portions of the answers and were by the district court sustained. The defendants bring the case here for review, assigning as error the sustaining of the demurrers. It will be observed that the question presented is as to the right of the defendant, in an action by the assignee to recover money due to an insolvent bank, to set-off against the amount owing by him an indebtedness of the bank to himself. Since this case was decided in the district court this question has been decided by this court in favor of the right of set-off. (Salladin v. Mitchell, 42 Neb., 859.) The case cited governs that before us. Reversed and remanded.