Lemon v. Stevenson

Mr. Chief Justice Walker delivered the opinion of the Court: The error relied upon to reverse this case, questions the correctness of the judgment of the court below, sustaining a demurrer to the fourth, fifth and sixtlppleas filed by appellants. The note sued upon was executed by Lemon, Hartley and Capron. In the fourth plea it is averred, that Lemon, one of the makers, delivered to one Baldwin, the agent of Pierce Brothers & Flanders, who were the real owners of the note at the time suit was brought, ten thousand bushels of corn, to be sold by them, in Boston, for the best price it would bring, on the first day of August thereafter, and after deducting expenses and charges, they were to apply the proceeds of the sale to the payment of the note. That they sold the corn, but at a different time and place, whereby a heavy loss was sustained ; and the plea offers to set off these damages against the note. In reference to this plea it will be observed, that it avers-that the contract was made by the agent of the holders of the note, with one of the makers, and not with all of them jointly. If damages were sustained, it was by him individually, and not by himself and his co-defendants jointly. The other joint debtors had no legal interest, either jointly or severally, in these damages. They could not join him in an action for their recovery. It then results, as a consequence, that the damages being due to Lemon alone, there was no mutuality in the demand, and these damages could not be set off against the note. The only mode in which they can be recovered is in an action by Lemon for a breach of contract. The fifth and sixth pleas set up substantially the same facts as the fourth except, that the corn was delivered by the defendants, instead of by Lemon alone. But there is a fatal defect which is common to all these pleas, which is, that the damages are not alleged to be due and unpaid. If they were not by the terms of the agreement due, they could not form the subject of a set-off. For aught that appears from these pleas, every cent of these damages may have been paid and satisfied, or may have been released or otherwise discharged. A party is required to make out his case by his pleadings, and not leave it to conjecture or inference. But no inference can supply the want of an averment that the damages were still unsatisfied. There is no language which can, by any known rule of construction, be held to imply such an averment. And even if the language of the plea was doubtful in its meaning, the most unfavorable construction must be adopted against the pleader. He is always presumed to state his ease as strongly in his favor as it will bear. There was therefore no error in sustaining the demurrer to these pleas, and the judgment of the court below must be affirmed. Judgment affirmed.