Sherman v. Crosby — 11 Johns. 70

Majority

p. 70

Sherman against T. and H. Crosby.

ALBANY,

Jan. 1814.

Headnote

Where S. ausettle a certain against s., and to adjust all the matters and 1 and costs'-11^ hyC Bpt stating thathehadreby the hands ¡aro ’ ¿l1 d i’ñ jndgmcnt’and cxecution in n waíheí^tó evidence^of1‘a payment of so hyc!, so as to tothset Zit!‘off maid* Of se" unless hecouid fraud oi^abuse by cauthority

Though the separate debt ofone defend se¡ o/Against the joint debt fendants, yet tion'^s “not”" piaintiffii’at the trial, he can avail himself of it, on a motion to set diet6 the vel"

THIS was an action of assumpsit on a promissory note, for 600 dollars, payable to the plaintiff, or order, on demand, with interesti The defendants pleaded non assumpsit, with notice of a set-off. The cause ivas tried at the Broome circuit, in May, ’ 1813, before Mr. Justice Spencer.

Ti support of their set-off, the defendants gave in evidence a WI‘id;en authority from the plaintiff, dated November 17, 1810, by which he authorized Thomas Crosby, one of the defendants, to settle a suit then depending between the plaintiff and John Bennet, in the supreme court, Samuel Sherwood, attorney, and “ to a^Just all the matters and pay all the dues and costs,” and agreeing « to account with T. Crosby for all lawful demands on that subject that he should settle.”

The defendant then offered in evidence the following receipt, admitted to be in the handwriting of Sherwood, and proved to have been signed by John Bennet, jun. “ Supreme court, John Bennet, jun. v. George Sherman. Received of the defendant in callse’ by the hands of Thomas Crosby, Esq. 411 dollars and 33 cents in full of the judgment and execution in this cause, excepting the sheriff’s fees on the execution now in the hands of the sheriff of Broome county, January 17,1811.”

The plaintiff’s counsel objected to this receipt, as being no . 3 n it evidence of a payment of the amount by the defendants, but that su°b payment by them ought to be shown by the testimony of some witness; and that at any rate, it was not sufficient evidence that the amount was actually due Bennet. The judge overruled the objection, and stated the receipt to be prima facie evidence, sufficient to entitle the defendants to set off the amount against the plaintiff. The plaintiff then submitted to a nonsuit, with leave to move the court to set it aside and grant a , . , new trial.

the motion to set aside the nonsuit, the following points were made on the part of the plaintiff, and the case submitted to the court without argument: 1. That the receipt of Bennet, who was not a party in this suit, Avas not evidence, but he ought to have been produced as a witness.

p. 71

% It ought not to have been admitted without proving that amount actually due to Bennet from the plaintiff.

3. The defendants could not avail themselves of a payment by one of them, as a set-off against a joint debt of both defendants.

The only question made at the trial was, whether the receipt was competent evidence of the payment by T. Crosby. It was proved to have been signed by Bennet, and as the plaintiff had instructed the defendant, T. Crosby, to settle the suit of Bennet against the plaintiff, and pay the demand and costs for him, the receipt of Bennet was prima facie evidence of the demand and payment, and it was not requisite for the defendant to make out, in the first instance, the legality of Bennetts demand, or highér evidence of the payment. The plaintiff had given the defendant a. discretion to adjust the demand, and to pay the dues and costs, and the adjustment and payment of the sum demanded was sufficient for the defendant; and it lay with the plaintiff to show some fraud in the adjustment, or some abuse of the discretion. There was no other point raised at the trial, or arising on the case, for it is too late for the plaintiff now to object to the set-off, on the ground that it was setting off the separate debt of one of the defendants against the joint debt of "both the defendants. That objection might have been good, if made at the trial. (Montagu on Set-Off, p. 23. Butter, J. in Fletcher v. Dyche, 2 Term Rep. 32.) It is now inadmissible, as the defendants are thereby deprived of the privilege of showing that the payment by T. Crosby was in fact made by him and his co-defendant, as partners, and out of the partnership funds.

The motion to set'iaside the nonsuit is denied.

Rule refused.