Howlett v. Mills

Walker, J. This was an action of assumpsit, instituted by Mills and others against Howlett and A. B. Sears as partners, on three promissory notes. On the 19th of October, 1857, Howlett filed a plea of the general issue, and on the 26th of December following he filed a plea of non-assumpsit, and a special plea, which alleged, that he and Sears made and executed a deed of assignment of a large amount of real and personal property, by which they conveyed it to an assignee for the benefit of their creditors, and that defendants in error were included in the number, and that the same was of more than sufficient value to have paid all their debts and liabilities, including the notes sued upon in this action. That the defendants in error and others, their creditors, took the control of the property so assigned, out of the hands of the assignee, and directed him to surrender it to the possession of said Sears, to sell and dispose of, collect and receive the proceeds of the same, for the use of defendants in error, and to pay their debt to defendants in error and their other creditors, and that the assignee, in pursuance of such order and direction, did surrender and deliver the property to said Sears, and that he took the control, possession and management of the same, and sold, collected, received and disposed of the property, without the knowledge or consent of plaintiff in error, whereby he sustained damage and became discharged from the payment of the notes sued upon in this case. To this plea, there was filed a demurrer, which was sustained by the court, and the plaintiff in error abided by the plea. It also appears from the record, that on the 3rd day of December, 1858, plaintiff filed a plea in every respect the same as that filed the 26th December, 1857, which remains unanswered. There was issue to the country, formed on the plea of non-assumpsit. The parties, by agreement, waived a jury, and a trial by consent was had by the court, which resulted in favor of the defendants in error, and the court rendered a judgment against Hewlett, for the sum of $1,218.34, to reverse which, he prosecutes this writ, and assigns for error— 1. That the court below erred in sustaining the demurrer to defendant’s special plea. 2. In rendering judgment while a plea remained in the record undisposed of, and not traversed. 3. In trying an issue in fact, before the issues at law were settled. 4. That the whole record does not show a cause, wherein a judgment could be properly rendered against plaintiff in error. This special plea fails to aver that when the property was disposed of and converted into money, that it was sufficient to pay the indebtedness for which it was assigned; nor does it show that the defendants in error were, by the terms of the deed of assignment, entitled to receive any portion of the avails of this property, until all the creditors had received the full amount of their claims. For aught that appears, the deed may have preferred other creditors in the payment of their debts, and when this property was reduced to money, that it would have been exhausted in payment of such preferred creditors; and it fails to aver, that the defendants in error were by the terms of the deed entitled to any portion of this fund. The plea fails to aver, that defendants in error ever agreed to look to, or rely upon this property, to pay or discharge this debt. There is no averment, that they had, in consideration of the execution of the assignment, agreed to release their claim. It fails to aver, that they had received or were entitled to receive any portion of the fund from Sears, or in what manner the plaintiff in error had sustained damage. It does not aver that Sears had wasted, sacrificed, or misapplied the- fund, or had in any manner been wanting in care and prudence in its management. But it simply relies upon the fact, that by the advice of the creditors, of whom defendants were a part, the property was surrendered by the assignee into the hands of Sears, and that he had reduced it to money. The mere assent by a creditor, that his debtor may make an assignment for the benefit of his creditors, cannot have the effect to release and discharge the debt, and this is what is asserted by this plea. It, at most, could only be held to require him to look to the fund for his portion to be applied on his claim, and leave him to collect the remainder out of the debtor. This plea does not show such a state of facts, as could in any event discharge any portion of these notes. The damages alleged to have been sustained, were not offered to be set off against the notes, and these damages would not constitute such a defense. Not being liquidated, and not growing out of the contract or agreement sued on, they were not a proper subject of set-off, and the party’s remedy, if he has any, is by action. The demurrer was properly sustained to this plea. The plea filed on the third day of December, 1858, being almost a literal copy of that of December 26th, 1857, must be held to be the same plea. It presents the same defense, in precisely the same manner as the other. The defendant, under the statute, has no right to file as many copies of the same plea as he may choose, and if he does, all but one may be stricken from the files, or disregarded by the court. The statute only contemplates the filing as many several pleas, as may present a several defense to the whole or a part of the cause of action, or the same defense in a different form. The stipulation filed in this case, also shows that the latter was filed as a copy of the former plea, under the supposition that the former had been lost. It was not intended for, or relied on as a separate and an independent defense, and as a copy, it required no answer. There was no error in proceeding to trial and in rendering judgment, while this plea remained unanswered. This disposes of the remaining assignments of errors and renders it unnecessary to discuss them separately. The judgment of the court below is affirmed. Judgment affirmed.