Fugit v. Ewing

9 Ind. 345

• Court: Indiana Supreme Court
• Decided: June 9, 1857
• Status: Published

Opinion

Perkins J. —

Suit upon a promisory note.

The defendants answered in three paragraphs — two alike setting up payment — and a third, averring that “on, &c., said plaintiff was indebted to defendants in the sum of 600 dollars, and in consideration thereof, said plaintiff and defendants, by mutual agreement, offset, &c.

Issue upon the first paragraph of the answer, and demurrers to the second and third. Demurrers were sustained, the issue of fact was tried, and there was judgment for the plaintiff upon the note.

The issue on the first paragraph covered all that an issue of fact upon the second, could have embraced, and hence, it is no matter how the second paragraph was got rid of.

H. F. Fugit, J. S. Scoby and W. Cumback, for the appellants (1). J. Gavin and J. R. Cover dill, for the appellee (2).

The third paragraph was bad, for uncertainty, and for not conforming to the statute. Section 78, 2 R. S., p. 44, enacts that when any pleading is founded on a written instrument, or an account, the original, or a copy thereof, must be filed with the pleading; and a set-off, or a counterclaim, is declared to be within the meaning of the section.

Now, the paragraph in question should have shower the character of the indebtedness proposed to be set off, and if it existed by way of note or account, a copy should have been filed. It is sought to take this case out of the statute, by saying that it is the agreement to set off, not the set-off itself, that is relied on as the defense; but an agreement for a set-off, without any set-off produced, would avail no more in defeating a suit, than the law authorizing set-off in a case where none was offered.

Per Curiam. —

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