Bonte v. Hall

2 Cin. Sup. Ct. Rep. 33

• Court: Ohio Superior Court, Cincinnati
• Decided: January 15, 1870
• Status: Published

Opinion

ITagans, J.

This, suit is for the recovery of $238.58, the amount of a promissory note due in June, 1868. The petition sets out that in an action of replevin between the same parties in this court, No. 23,391, the defendant had obtained a verdict against the plaintiff for $150; that he is insolvent, and if allowed to obtain judgment and collect the same, the plaintiff in this action would be irreparably injured; and the plaintiff asked an injunction to restrain the defendant from further proceedings in'that action, and that the verdict might be set off against the plaintiff’s claim herein, and for judgment for the residue. The injunction was allowed March 27, 1869.

To this petition, the defendant answers first, by a general denial of the indebtedness; and second, that on November 27, 1868, he sold and transferred all his right, title, and interest to the claim involved in the replevin suit to O’Connor & Powell, who are parties defendant in this action also, and to any judgment that might be recovered therein; that the note sued on in this action was given in payment for a Iqokiug-glass, of which the plaintiff obtained possession by the said replevin, and in which the defendant obtained the same yerdict of $150; and that having possession of the looking-glass, he has admitted that the note is null and void. Therefore the plaintiff should not recover.

To this second defense the plaintiff demurs.

The whole plea, if referred to its closing sentences, is inconclusive. It may be trrje that the plaintiff has the looking-glass; but it does not follow that the note is null and void.

The damages awarded by the jury are the value of the looking-glass when seized in replevin. The note sued on here is the price of the same article when sold to the defendant.

Defendant probably means that that verdict can not be set off' against the plaintiff’s demand. A fair construction of the plea implies this; section 26 of the Code fairly covers the ease. Undoubtedly if these respective claims were in judgment, or if the plaintiff had a judgment in this action, and the defendant’s assignment were of an expected judgment on his verdict, the one might be set off against the other; and that right could not be defeated by an assignment to a third person. Johnson Bro. & Co. v. Taylor, 1 Disney, 168.

Whether the claim assigned to O’Conner & Powell before verdict was a chose in action, such as could then be assigned, is a question not necessary to determine. Certainly the moment the verdict was rendered, it became a debt, and the right of set-off' attached eo instanti; and the assignor became subject to the equity of the plaintiff, and the defendant could then have transferred no better right than he himself possessed. A fortiori he could not have done so before. Grand v. Ludlow’s Ex’rs, 8 Ohio St. 2; Johnson Bro. & Co. v. Taylor, 1 Disney, 168.

It can make no difference in principle that the note sued on is not yet in judgment. The assignment is of an uncertain claim, and for an expected recovery of unliquidated damages. That the verdict in replevin has since been rendered can not alter the condition of the parties. If the position of the parties were reversed, and the defendant’s assignees were seeking to enforce the verdict against the plaintiff, if a judgment were rendered on it, the plaintiff might set off the amount of the note sued on. The equity would be good then, and it is not too late to enforce it now.

Demurrer sustained.