Gullett v. Hoy & Orton

15 Mo. 399

• Court: Supreme Court of Missouri
• Decided: January 15, 1852
• Status: Published

Opinion

Gamble, J.,

delivered the opinion of the court.

(gullett, as the endorser of ft negotiable promissory note, sued Hey & Orton, the makers. The endorsement to ^Gullett w$s tnadNby jEe payee after the maturity of the note. The defendants, in theft rely upon an off-set due to them from the payee of the note before his endorsement of it to Gullett. The plaintiff demurred to the answer claiming the set-off, and the circuit court overruled the demurrer. As the off-set claimed exceeded the amount of the note, judgment was rendered for the defendants.

The note in this case being negotiable, the statute which fixes the rights and liabilities of parties to bonds and ordinary notes when assigned, does not apply, but we must look to the general law applicable to bills of exchange, as by statute this note ‘‘has the same effect and is negotiable in like manner as an inland hill of exchange."

This note being endorsed after it became due, the endorser took it subject to all the equities attached to it in the hands of the payee. These equities are such as are connected with the note itself, and not such as grow out of distinct and independent transactions between the original parties. A set-off that might have been asserted against the payee cannot be set up against the endorsee, although the note was transferred after it became due: Burroughs vs. Moss, 10 Barn & Cress., 558; 10 Mees & Wels. 696; 2 Penn. State R., 103; Story on Bills, § 220.

The demurrer to the set-off should have been sustained, and judgment should have been rendered for the plaintiff for the amount of the note and interest, as the set-off was the only defence made in the answer. The judgment is therefore, with the concurrence of the other judges, reversed and the cause remanded that it may be proceeded; with in accordance with this opinion.