Hunt & Vaughan v. Shackleford

Chalmers, J., delivered the opinion of the court. The defendant in error, as the assignee and holder of the following instrument, brought suit thereon against the makex-s : [96] “Received from H. M. Peden, Esq., one letter-envelope, sealed, and said to contain two hundred and ninety dollars. [Signed] “Hurt & Vaughan, " per Evans. [Indorsed] “ H. M. Peden." The declaration contained a count for money had and re-' ceived, and for a bailment with contract to redeliver. The defendants pleaded non assumpsit, .andpayment to Pedenby set-off, before notice of transfer. The plaintiff read the instrument in evidence, and rested his,case. Had the defendants demurred to the evidence, or gone to the jury without evidence, they must have prevailed, because the -writing, unexplained, imported no obligation to pay any thing, or to redeliver. Upon its face it was a mere -receipt, • and, without explanation, imposed no legal liability of any sort. Non constat but that the package had been delivered in payment of a debt, or belonged to some person other than Peden. Put the defendants themselves introduced evidence which tended to show that the sealed package did contain $290, and that it was received, as a bailment; and the whole case being before us on general bill of exceptions, we are able to see that’ the instrument did import a legal liability, and was', therefore, assignable under sections 670 and 2228 of the Code of 1871. The set-off pleaded and proven by the defendants consisted of a claim for the value of six bales of cotton, mortgaged to the defendants, which Peden had obtained possession of as their, agent, and converted to his own use. Their value was proven to be in excess of $290. It is objected that this claim could not be made the basis of a set-off, because, by the terms of the trust deed, the legal • title to the cotton was invested in a trustee for the use and benefit of the defendants, who, being only cestuis que trust, could not in a court of law assert their interest. The objection is too technical. The title of the trustee was purely [97] nominal — the whole beneficial interest being in the defendants. The money realized from the conversion belongs to them, and when they are sued on other accounts, by the party who has converted it to his own use, or by an assignee who is legally bound by the equities, no good reason is perceived why they may not set off the one demand against the other. It was held, in Ashby v. Carr, 40 Miss. 64, that the holder, by delivery of an unassigned open account, might plead it by way of set-off, though not invested with the legal title. The principle is the same in the question here involved. The jury, by their verdict, rejected the set-off. We think their verdict wholly unsupported by the testimony. The trust deed was produced in evidence, and its validity was not questioned. The admissions of Peden that he had converted the cotton, knowing it to be under mortgage to the defendants, were proven, nor was there any conflicting testimony in the case. The instruction given for the plaintiff was correct, but there was nothing in the case to warrant the finding of the jury. Judgment reversed and cause remanded for new trial.