Cary v. Bancroft

31 Mass. 315

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1833
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. In the first place we think it clear, that the agreement made between the plaintiff and defendant, at the time that, the note for $ 34‘08 was given, that that and the defendant’s note for $25 "54 should balance and be set off, one against the other, so far as the smaller would pay the larger, if available at all, was an executory contract, requiring some further act to be done, before the one would operate as payment or extinguishment pro tanto of the other. It is like an agreement not to sue, executory and collateral, not affecting the terms of the note till executed. Dow v. Tuttle, 4 Mass. R. 414. The note held by Cary against the defendant was then a good sub sisting negotiable note, and passed by the indorsement to Goddard, subject perhaps to Bancroft’s set-off if Goddard received it with actual or constructive notice. But as Bancroft was indebted to Cary on another account, larger than the amount of the note he held against Cary, and had no notice that this account bad been assigned to Stockwell, it cannot be considered that he paid the note to Goddard in his own wrong.

As the agreement above mentioned did not operate as payment or extinguishment, but left the note of Cary against Bancroft a good subsisting note, capable of passing by indorsement, so Bancroft’s note was a good subsisting note, to avail by way of action or set-off as he might choose to apply it. Stockwell therefore took the assignment of Cary’s account against Bancroft, subject to the right of the latter to set off this note ; to this extent therefore, it supported the defence.

But upon the other point, the Court are of opinion, that the plea of tender cannot be supported by the evidence. A plea of tender must show an unqualified offer to pay the whole amount, and of course admits the whole to be due. In this respect, it differs essentially from the payment of money Into court, under a rule, which would have been the proper course in the present case. A plea of tender admits the amount due, and a readiness at all times to pay it. But a set-off, though to a certain extent it admits the plaintiff’s claim, yet sets up a counter, independent demand and cause of action, as a legal reason why the defendant should not be held to pay it.

Besides, a man may withdraw his account in set-off, before judgment upon it, and bring a separate action upon it, and therefore tender or notice of set-off, did not extinguish the note, and the defendant was not bound by it. Brady v. Jones, 2 Dowl. & Ryl. 305.

Verdict set aside and new trial granted.