Hill v. Roberts , 86 Ala. 523 ( 1888 )

McCLELLAN, J.

The set-off was well pleaded. The first and third replications are sufficient in form and substance. The second replication must be construed to aver, that the facts of the case authorize the court to find that the claim relied on as a set-off had been paid by the application to it of the debt which Dunlap and the appellant Hill had owed the appellee. So construed, each of the replications, and all of them combined, present one and the same issue — whether the cross-claim set up by the plea had been paid. Manifestly this was a,material issue, and upon it the case properly proceeded to trial. The question for the jury was, not whether Hill’s claim against Roberts should be by them set off against Roberts’ claim against Dunlap & Hill, but whether those claims had in point of fact been applied by the parties in satisfaction of each other The law indulges no presumption in this matter. It was not a question as to thei appropriation of payments. As we understand the pleadings, it is not alleged that Hill ever made any payment to the appellee. The moneys of Hill which came into appellee’s hands, were received by him as Hill’s agent, not to be applied to any debt the latter might have owed him, but for the purpose of being paid to Hill. If this money is to be regarded in any sense as being paid by Hill to Roberts, the presumption of law, as between the two claims Roberts liéld against Hill, would be, that it was applied to the note in suit, rather than to the debt of the firm of which Hill was a member. But it can not be so regarded, and its application can not be determined by reference to the law as to the appropriation of payments made generally to a creditor having more than one claim against the debtor. The reception of the fees constituted Roberts the debtor of Hill, in the same sense that the execution nof the due-bills constituted Hill the debtor of Roberts. They had demands each upon the other, and there is no principle of law which enforces the liquidation of one with the other, or raises any presumption that the parties have paid one by the satisfaction of the other.—Hill v. Cook, 1 Ala. 630; Hudnall v. Scott, 2 Ala. 569; Green v. Storm, 3 Sand. Ch. 305.

It was upon the plaintiff below to sustain his replications, by evidence that the parties had applied their several demands to the liquidation of each ;other; that the claim of Hill relied on in set-off had been paid by crediting Hill with the amount of it on the due-bills of Dunlap & Hill. Not only was this not shown, but, on the contrary, any presumption of fact that might have otherwise been indulged, from lapse of time or other circumstance, .Ivas rebutted, by proof of the pendency of a suit instituted by appellee on, and for the full amount of, the due-bills of Dunlap & Hill. On this state of the testimony, the case presented a subsisting claim, other than that on which suit was brought, on each side, and an effort to have the jury set off the one against the other. This can not be done. There can be no set-off to a set-off. 7 Wait’s Act. & Def. 474; Spencer v. Almoney, 56 Md. 562; Hudnall v. Scott, supra.

That part of the charge of the court, to which an exception was reserved, authorized the jury to set off the claim due from Dunlap & Hill to [Roberts, against the set off pleaded by him. This was error, for which the case must be reversed and remanded.