Dingley v. Gifford

Emery, J.

Arthur M. Burnham had an account against Charles Gifford, amounting to $2145. He also held Gifford’s over-due promissory note for $200. Gifford, in turn, had an account against Burnham amounting to $1085.50. Burnham assigned his account against Gifford to M. S. Holway, who brought suit upon it and took judgment for the sum of $142.51. Burnham assigned the over-due note to R. T. Burnham, and the latter assigned it to Dingley & Co., the plaintiffs, who have *364brought this suit upon the note against Gifford, the maker. The defendant, Gifford, has filed in set-off against this over-due note his account of $1085.50 against Burnham, the original payee, as by law he can.

The question presented by the defendant’s bill of exceptions, is whether the plaintiffs in this suit upon the note can lawfully avoid all or any part of Gifford’s account against Burnham, (filed in set-off) by showing that all or any of the items in the account were furnished by' Gifford to Burnham in payment pro tanto of Burnham’s larger account against Gifford, which had been sued by Hoi way.

The case does not show how a judgment for only $142.51 came to be rendered on an account for $2145, whether by evidence of payments, or by the allowance of items inset-off, or in any other way. The defendant, Gifford, claims that this is all immaterial, that however it was reduced, the account of Burn-ham against him -was merged in the judgment, and was thereby extinguished, leaving his own account against Burnham in full force and unaffected by' Burnham’s account against him. It may be conceded for the'purpose of the argument, that Burn-ham’s account against Gifford was so far extinguished by the judgment, that no item in it would sustain a suit against Gifford, or sustain a plea of set-off in a suit by Gifford ; but this concession does not conclude the plaintiff in this suit, which is not upon Burnham’s account, but is upon a note not included in the judgment invoked.

In this suit upon the note, the defendant, Gifford, in support of his plea of set-off, was bound .to show that some of the items of his account were, at the time of the suit, subsisting, unsatisfied items of charge against Burnham, which should now be applied in reduction or payment of the note. The plaintiffs, on the other hand, were entitled to rebut this evidence, and show that these items had already' been satisfied in some way, or had already been applied by Gifford to reduce some other claim of Burnham against him. They undertook and were permitted to show that the items of set-off against their note had been furnished by' Gifford to Burnham in payment and reduction of *365Burnham’s account against him, and hence could not be again used to reduce the note. The ruling admitting such evidence and giving it the effect stated was clearly right. The judgment in the suit on the account does not exclude an inquiry into the merits of the set-off against the note.

Exceptions overruled.