Booe v. Watson

13 Ind. 387

• Court: Indiana Supreme Court
• Decided: November 15, 1859
• Status: Published

Opinion

Worden, J.

Suit by the appellees against the appellants, on a note made by the appellants to one Robert M. C. Watson, and by him endorsed to the plaintiffs.

Each of the defendants answered separately, setting up as a set-off an indebtedness due to himself from Robert M. C. Watson, accruing before the assignment of the note. Demurrer to the answer sustained, and exception. The ruling on the demurrers is the only matter complained of here.

The ruling below was right. The set-off pleaded, lacked the essential quality of mutuality. Each answer set up matters due to only one of the makers of the note, and in such case they cannot be set-off. Reed v. Coale, 4 Ind. R. 283.—Johnson v. Rent, 9 id. 252.

■ The statute authorizing the principal, in a note ma.de by a principal and surety, to set up as an offset a claim, due to himself from the payee, &c., does not apply here, as there is no averment that one of the makers is a principal, and the other a surety. For aught that appears, both makers of the note are principals. If one of the makers of the note were a principal, and the other his surety merely, whereby a debt due from the payee or holder to the principal, could be set-off, that fact should, in our opinion, be averred in the answer setting up the offset.

J. S. Reid, for the appellants. S. W, Parker and J. C. McIntosh, for the appellees.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.