State ex rel. Cowan v. Modrell

Gamble, J., delivered the opinion of the court. The action in this case being brought upon the bond of two executors, against the principals and securities, alleging breaches in various acts of misconduct by the principals, the damages to be recovered are not necessarily liquidated, and the action is not, therefore, one in which a set-off is allowed. There must be a debt on the part of the plaintiff, as well as on the part of the defendant, to authorise a set-off. The test given by Chief Justice Kent is, that the indebtedness for which the action is brought, must be such that if the plaintiff were sued by the defendant upon the set-off claimed, he could claim his cause of action in that suit as a set-off. Gordon vs. Bourne, 2 J. R. 155. If the executors, who are the principals in the bond here declared upon, were to sue Cowan upon his alleged indebtedness to their testator, could he use as a set-off his present claim for damages for their failure to discharge their duties as executors? Clearly not. Again, the claim in the present action is a claim against the principal and securities in the bond in their individual capacity, founded upon the misconduct of the executors. Against this claim an indebtedness to the testator of two of the defendants cannot be set off. As this disposes of the question of set-off, it is unnecessary to consider the question whether the set-off admitted in the circuit court was barred by the statute of limitation. The instimctions of the court below being given under a misapprehension of the law of set-off, the judgment would be reversed but for the fact that the petition of the plaintiff shows no legal cause of action. The petition states the allowance of a demand by the county court against the estate of Robert Modrell, the testator, in favor of the plaintiff, but it does not show by any averment that any order of the court has ever been made for its payment, or that any assets have ever come to the hands of the executors which ought to have been or could lawfully be applied to its payment. Although it alleges that assets have come to the hands of the executors, and have been converted by them, the plaintiff has not been injured thereby, if there are demands allowed against the estate in a class prior to his, that would absorb all the assets of the estate. The petition, then, not showing that the plaintiff is a party injured by the breach of the condition, fails to show any right to commence this suit for his benefit, and consequently he is rightly out of court, although for a wrong reason. The judgment is affirmed.