Dilley & Walker v. Roman , 1861 Md. LEXIS 44 ( 1861 )

LeGrand, C. J.,

delivered the opinion of this court.

This is a case under the lien law of 1841, chapter 76, and its supplements, growing Out of a claim for lumber furnished on or about the erection and construction of the building described in the proceedings.

The whole amount of lumber furnished, as appears from the account of the plaintiffs, is $631.74. On the account credits are given, for cash and lumber, to the amount of $497.21, leaving a balance of $202.83. The credit for lumber is $323.83.

To the claim of $202.83, the defendants filed their plea of set-off, stating that the plaintiffs, before and at the time of filing their lien, and the issuing of the scire facias thereon, and from thence have been and still are, indebted “unto the Parker Vein Coal Company in a much larger sum of money than the money due and owing from the said J. Philip Roman and Chas. S. Darrow, and for which the said Dilley &. Walker have filed their said lien against the said Roman and Darrow, to wit, in the sum of $366.60, current money, for lumber sold and delivered by the said Parker Vein Coal Company to Dilley & Walker, before that time, at the special instance and request of the said Dilley & Walker, which said sum of money still remains wholly due and owing and unpaid to the said J. Philip Roman and Charles S. Darrow, by the said Dilley & Walker, and which sum exceeds the damages sustained by the said Dilley & Walker,” &>c.

To this plea the plaintiffs replied, that at the time of filing their lien, to wit, on the 29th day of Januaiy 1855, and from thence hitherto, the Parker Vein Coal Company have been and still are indebted unto them in another and further sum of money than the sum so mentioned in the scire facias, to wit, the sum of $400, for lumber, goods and chattels sold and delivered to the Parker Vein Coal Company, for which the plaintiffs have no lien or other security, and out of which sum so due and owing, the plaintiffs are ready and willing and offer to set-off and allow to the defendants the sum alleged by them in their plea to be due and owing to them.

(Decided Oct. 9th, 1861.)

To this replication there was a demurrer, which was sustained by the court.

The demurrer mounts up to the first error in pleading, and requires the court to give judgment accordingly. We think the plea of set-off of the defendants is defective in this: — it does not appear, on its face, that the claim alleged as a set-off is due from the plaintiffs to the defendants, nor that the defendants are assignees of the Parker Vein Coal Company. If the defendants be assignees, it should have been alleged that the debt was due the assignor before the assignment, and the assignment to the defendants, also, should have been alleged. In these particulars the plea is defective, and being so, the court erred in sustaining the demurrer to the plaintiffs’ replication.

Judgment reversed and procedendo awarded.