Barker v. Walbridge

[474] By the Court Gtleillam, Oh. J. This was an action brought under Chap. 84, Gen. Stat., before a justice of the peace, by a landlord against his tenant, to recover possession of rented premises, for non-payment of rent due, to the amount of $250. The tenant alleges that when the rent came due he held plaintiff’s over due promissory note, on which was due $230, which, with $20 in money, he tendered in payment of the rent. The action went by appeal to the district court where plaintiff had a verdict. Defendant moved for a new trial, and from the order denying the motion, appeals to this court. The respondent here moves to dismiss the appeal, on the ground, that in such case an appeal to this court does not lie. We have no doubt that in an action brought under this chapter, the parties have the same right of appeal to the full extent, as in other cases tried before a justice of the peace, and are not limited to the appeal to the district court. ' The first question on the merits is, has a debtor who holds his creditor’s over due promissory- note the right to tender him the note and insist on its being set off against the debt? This question is decided in the negative in Carey vs. Bancroft, 14 Pick., 315, and Hallowell & Augusta Bank vs. Howard, 13 Mass., 234. In the last case the bank’s own circulating bills were offered to pay a debt due it. The court said “Nothing is lawful tender but gold and silver. To permit the defendant thus to set off these promissory notes would be allowing cross demands to be set off in like manner in every case. The notes are nothing-more than evidences of a right of action. ” ■ The authorities in New York intimate that a solvent bank is bound to receive its own bills in payment of debts due it. There would be a propriety in requiring this of a bank, which does not exist with respect to the promissory notes of an individual. [475] Bank bills are issued as money, circulate as money, enter into the currency of the country, and, if current, are good as ale-gal tender, unless gold and silver be insisted on, and it would be but reasonable, that after giving them credit and currency as money, the bank should be required to receive them as such ; but the promissory note of an individual is not issued, ■ nor intended to circulate, nor circulated as money; no one receives it as such; it passes only as an evidence of debt; there is no greater reason for requiring the maker to receive and apply it upon demands due him, than exists as to any other debt which he owes. The matter of set-off, and the application of cross demands in satisfaction of each other, must be left to the courts when suits are brought on them, or to the agreement of parties. The defendant further insists that the note should have been allowed as an equity under the third sub-division of Sec. 79, Chap. 66, Gen. Stat., or a counter claim under Seo. 80. The answer does not set it up expressly for either purpose, but we will consider whether the facts stated show that it could be allowed as an equity, or counter claim. An equity, to come within the meaning of the third sub-division of section 79, must be one which, according to the rules governing courts of equity under the former system, would entitle the defendant to relief wholly, or in part, against the liability set forth in the complaint as the basis of plaintiff’s action. The test of its sufficiency “ must be whether, had the same facts been presented by a bill in chancery, would that court have entertained the bill, and granted the relief sought here.” Gates vs. Smith, 2 Minn., 30. If such facts constitute a cause of action at’law, it must be shown that in such action the party would not have an adequate remedy, otherwise he is left to follow his action at law. This hnswer [476] does not disclose that defendant could not collect the note by a suit upon it, and therefore shows no reason why a court should exercise its equity jurisdiction by setting the note off in satisfaction of the rent, the non-payment of which is the basis of plaintiff’s cause of action. Is the note a counter claim in this action ? The second sub-division of section 80 clearly refers to an action on contract for the recovery of money, and to a cause of action in favor of defendant, of a similar character, as a counter claim; to reciprocal money demands arising on the same or different contracts. This is not such an action as is intended by that sub-division. It is to recover the possession of real estate. The first sub-division of section 80, in regard to the actions in which a counter claim may be pleaded, is much broader than the second sub-division. Under it, in all actions (except, perhaps, those purely in tort,) whatever their form, there may be a counter claim, provided it comes within its definition. The counter claims intended by this sub-division, seem capable of division into two classes. First. Construing the word “ transaction,” as referring not merely to an occurrence or act, but’ to some commercial or business transaction, or dealing — something in the nature of contract, (Barhyte vs. Hughes, 33 Barb., 320,) perhaps a series of contracts with respect to the same business or subject (Walker vs. Wilson, 13 Wis., 522; Hall vs. Gale, 14, ib., 54); then in an action founded on a contract, or such a “ transaction,” a cause of action in defendant, arising out of that contract or “ transaction,” would belong to one class. /Second. In an action for or concerning a particular subject or thing, a cause of action in defendant, though not arising on any contract or transaction of the character described, if connected with such subject or thing so that the [477] determination of plaintiff’s cause of action would not do exact justice without at the same time determining defendant’s cause of action, would belong to a second class. Thompson vs. Kessell, 30 New York, 383. The intention of the legislature is manifest, to facilitate the settlement of controversies between parties litigant, by allowing all such controversies, when connected by the same contract or transaction,.or the same subject, to be tried and determined in one action, instead of several. Further than that it is impossible to go without involving the trial of actions in such confusion that injustice must result. It is impossible to hold that this note is a counter claim in this action. It is a wholly independent cause of action. After the note had been offered and excluded on the trial, the defendant asked leave of the court below “ to so amend the answer as to enable him to invoke the equitable powers of the court.” This presented nothing for the court to exercise its discretion upon. When a party asks leave to amend his pleading, he must inform the court in what particular he desires to amend it. The order appealed from is affirmed,