Gross v. Weary

Mr. Justice Scholfield delivered the opinion of the Court: The only question here is whether the court below erred in refusing to stay proceedings on a judgment confessed by cognovit, until an issue of fact on the question of set-off could be tried. The affidavit alleges that appellant is a practicing attorney at law in this State ; that, prior and subsequent to the making of the note upon which judgment was entered, he was frequently consulted by appellee as to matters of law growing out of and pertaining to the business of appellee ; that he thus acted as attorney at law for appellee for about one year, and that his services therefor are reasonably worth $200. It admits the execution of the note, and a cognovit authorizing the entry of judgment thereupon, but alleges that appellee, subsequently, and before judgment was entered, agreed to give credit on the note for the value of his services, which he neglected to do. It does not appear but that all of the services, except a merely nominal part, were rendered before the execution of the note and cognovit. As to the services thus rendered, we are of opinion the execution of the cognovit was a waiver of the right to interpose them as a set-off to the note. And, it not appearing that services of any material value have been since rendered, no necessity is apparent for staying proceedings to await the result of an issue on that question. If we are correct in holding that the execution of the cognovit was a waiver of the right to interpose a set-off, for causes then known to be existing, the subsequent promise to give credit on the note was but nudum pactum, and binding in conscience only. In what has been said, we have laid out of view, entirely, the counter affidavit of appellee, which fully and positively denies every material allegation in appellant’s affidavit in regard to the claimed set-off. The judgment is affirmed. Judgment affirmed.