Johnston v. Humphrey

64 N.W. 317, 91 Wis. 76, 1895 Wisc. LEXIS 11

• Court: Wisconsin Supreme Court
• Decided: September 26, 1895
• Status: Published

Opinion

Cassoday, C. J.

The statute provides, in effect, that a demand by one party may be set off against and as a defense, in whole or in part, to demands by the other party, whenever the demand arises upon contract, express or implied, if " it existed at the time of the commencement of the action, and then belonged to the party claiming to set off the same, and was due to him in his own right, either as being the. original contractor or payee, or as being the assignee and owner thereof; and that, if the contract has been assigned to the party, a demand existing against such party, or any assignor of such contraed, at the time of his assignment thereof, and belonging to the opposite party, in good faith, before notice of such assignment, may be set off, to the amount otherwise recoverable upon such contract, whenever the demand be such as might have been set off against the party or assignor while the contract belonged to him; but, in case the action be upon a negotiable promissory note or bill of exchange, then such setoff can only be allowed when such note or bill has been assigned to the party “ after it became duel E. S. sec. 4258.

The question whether the appellant is entitled to set off the certificates of deposit so purchased by him depends upon whether the rights of the parties under this statute became fixed at the time A. J. Gloss closed his bank, June 9, 1893, ■or at the time he made a general assignment for the benefit of his creditors, June 15, 1893. It has heretofore been supposed by this court that “ the rights of the creditors and debtors of an insolvent assignor as to setoffs become fixed immediately upon the completion of the assignment, in analogy to the rule applicable to debtors and creditors in the case of a deceased insolvent.” Union Nat. Bank v. Hicks, 67 Wis. 192; Oatman v. Batavian Bank, 77 Wis. 503; Jones v. Pie-ning, 85 Wis. 267. The same rule has been recognized in other states. Smith v. Brinkerhoff, 6 N. Y. 305; Bothschild v. Mack, 115 N. Y. 9; Fera v. Wickham, 135 N. Y. 225; Peirce v. Bent, 69 Me. 381. So it is held in England that, “ where there are mutual dealings between a debtor and his •creditors, the line as to setoff must, as a general rule and in the absence of special circumstances, be drawn at the date of the commencement of the bankruptcy.” In re Gillespie, Ex parte Reid & Sons, 14 Q. B. Div. 963.

It is conceded that an equitable setoff may be allowed in a proper case without -statutory authority. The question here presented is whether equity will refuse a right of setoff ■expressly given by statute. We find no case authorizing such refusal. On the contrary, the authorities all seem to .agree that equity will follow and obey an express statute •applicable to the case. 2 Story, Eq. Jur. §§ 1430-1437; Bathgate v. Baskin, 59 N. Y. 537; Jordan v. Nat. S. & L. Bank, 74 N. Y. 473; Spaulding v. Backus, 122 Mass. 554. Here the appellant seems to have a right of setoff, by the express language of the statute. There seems to be plenty •of authority to support such right of setoff. Lloyd v. Turner, 5 Sawyer, 463, and cases there cited; Mattocks v. Lov-ering, 3 Fed. Rep. 212; Peirce v. Bent, 69 Me. 381; Jordan, v. Sharlock, 84 Pa. St. 368; Collins v. McKee, 6 Atl. Rep. 396; Wilson v. Gabriel, 4 Best & S. 243. Cases are cited where it has been held, in effect, that the setoff here would not be allowed. But it is believed those cases mostly arose under statutes which did not permit a creditor of an insolvent debtor to obtain a preference by attachment or otherwise. That is certainly so with the case of Smith v. Hill, 8 Gray, 572, as will appear by reference to the following cases: Shelton v. Codman, 3 Cush. 318; Andrews v. Southwick, 13 Met. 535; Ward v. Proctor, 7 Met. 318; Sprague v. Wheatland, 3 Met. 416; Bigelow v. Pritchard, 21 Pick. 169. The same seems to be true as to the Michigan cases relied upon. Stone v. Dodge, 21 L. R. A. 280, 96 Mich. 514; Bradley v. Thompson Smith’s Sons, 23 L. R. A. 305, 98 Mich. 449. So proceedings under the recent bankrupt act dissolved prior attachments within a certain limit of time. But no such statute exists in this state.

There can be no doubt, under the evidence, that the appellant. purchased the several certificates of deposit mentioned for a valuable consideration, and became the owner thereof in good faith, within the meaning of sec. 4258, B. S.

The mere fact that the bank had closed its doors did not prevent such purchase in good faith.

By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to. law.